COURT OF APPEALS C13047
NOT TO BE REMOVED C13207
FROM THIS OFFICE
COURT OF APPEALS FOR ONTARIO
ROBINS, LASKIN and ROSENBERG JJ.A.
BETWEEN: ) Clayton Ruby and Marlys Edwardh
) for the appellant, Church of
) Scientology of Toronto
)
HER MAJESTY THE QUEEN ) John Norris
) for the appellant, Jacqueline Matz
Respondent )
) Michael Bernstein and
) Renee Pomerance for the Crown,
-and- ) respondent
)
) Frank Addario and Peter Rosenthal
CHURCH OF SCIENTOLOGY OF ) for the intervener, Dudley Laws
TORONTO and JACQUELINE MATZ )
) Roslyn J. Levine, Q.C.
Appellants ) for the intervener, Attorney General
) of Canada
)
) Linda McCaffrey, Q.C.
) for the Ministry of Consumer and
) Commercial Relations
)
) Heard: September 9, 10, 11, 12, 13,
) 16 and 17, 1996
TABLE OF CONTENTS
Page
I. INTRODUCTION 1
A. Overview of the Case 1
B. Verdict at Trial 2
C. Theories of the Parties 2
D. Corporate Management Structure 4
E. Crown Witnesses 8
F. Defence Witnesses 12
G. The Breach of Trust Counts 13
1. Breach of Trust at Ontario Provincial Police 14
2. Breach of Trust at Ontario Ministry of the
Attorney General 14
H. Pre-Trial Motions 16
I. Grounds of Appeal 16
II. ORDER OF CLOSING ADDRESSES 17
III. SIMILAR FACT EVIDENCE 18
IV. EXPRESSION OF OPINION BY THE TRIAL JUDGE 20
V. "REPLY" TO DEFENCE COUNSELS JURY ADDRESS 22
VI. CREDIBILITY OF PRINCIPAL CROWN WITNESSES 22
A. Adequacy of the Vetrovec Warning 24
B. Confirmatory Evidence 27
VII. DISCLOSURE 29
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VIII. EXCLUSION OF SECONDARY EVIDENCE 38
A. The Motion to Exclude the Primary Evidence 38
B. The Motion to Exclude the Secondary Evidence 42
C. Analysis 47
1. Causation 47
2. Fairness of the Trial 48
3. Seriousness of the Charter Violation 49
4. The Administration of Justice 52
IX. ELIGIBILITY FOR SERVICE ON A JURY 54
A. Introduction 54
B. Selection of a Jury in Ontario 55
C. The Challenge at Trial to the Array 58
D. Positions of the Parties on Appeal 61
E. The Interveners 62
F. Analysis 63
1. Standing to Make a s. 15 Challenge 65
2. Section 15 Rights of the Appellant Matz 71
3. Section 7 of the Charter 73
4. The Right under the Common Law and the Criminal Code
to a Properly Constituted Jury 76
5. Section 11 of the Charter 78
6. Exclusions Based on Occupation and Marital Status 91
X. CORPORATE CRIMINAL LIABILITY 93
A. Introduction 93
B. Application of the identification Doctrine to a Non-Profit
Religious Corporation 94
1. The Facts 94
2. Ruling of the Trial Judge 97
3. The Issue 97
4. Analysis 98
(a) The Identification Doctrine 98
(b) Does the Identification Doctrine Apply to
Non-Profit Corporations? 100
(c) Sections 7 and 11(d) of the Charter 104
(d) Section 2(a) of the Charter 107
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(e) Section 1 of the Charter 113
(i) Objective 115
(ii) Rational Connection 115
(iii) Minimal Impairment 116
(iv) Proportionality of Effects 122
(f) Section 2(d) of the Charter 123
XI. APPLICATION OF THE IDENTIFICATION DOCTRINE
TO THIS CASE 124
A. The Application of The Rhone 124
B. Trial Judge's Direction on Corporate Criminal Liability 130
XII. SENTENCE 134
A. Introduction 134
B. The Seriousness of the Offence 135
C. Remorse 137
D. Treating the Appellant as a Discrete Entity 140
E. General Deterrence 141
XIII. DISPOSITION 143
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ROSENBERG J.A.:
1. INTRODUCTION
A. Overview of the Case
On June 25, 1992, the Church of Scientology of Toronto and
Jacqueline
Matz were each convicted of two counts of breach of trust contrary to
s. 111 of the Criminal Code. R.S.C. 1970, c. C-34 (now R.S.C. 1985,
c. C-46, s. 122) following a trial before Southey J. and a jury. The
Church of Scientology of Toronto was fined $250,000 and Jacqueline
Matz was fined $5,000 The Church of Scientology of Toronto appeals
both the convictions and the sentence. Jacqueline Matz appeals the
conviction only.
The charges arose from activities conducted by the intelligence
Bureau within the Guardian's Office, a management arm of the
appellant,
Church of Scientology of Toronto. Between 1974 and 1976,
Scientologists
secured employment with government agencies perceived to be enemies of
the Church, and signed oaths of secrecy as public officials. In breach
of their oaths of office, they then took copies of confidential
documents
from the agencies that employed them and provided them to the Church
of Scientology of Toronto. The appellant Jacqueline Matz, was a "Case
Officer" and "Director of Operations", and was responsible for
supervising the agents who had been planted in the various government
agencies and other organizations.
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B. Verdict at Trial
The indictment originally included twelve counts, consisting of
seven
counts of theft and five counts of breach of trust. The theft counts
related to theft of documents from government agencies and other
organizations. The breach of trust counts related only to government
agencies. As a result of a pre-trial ruling excluding certain evidence
under s. 24(2) of the Canadian Charter of Rights and Freedoms, Part I
of the Constitution Act, 1982, being Schedule B of the Canada Act 1982
(U.K.), 1982, c. 11, the Crown was left with no admissible evidence
on the theft counts. These charges were severed from the indictment,
and acquittals were entered. The jury convicted the appellants of
breach of trust in relation to the Ontario Provincial Police and the
Ministry of the Attorney General of Ontario. The appellants were
acquitted on a second count involving the Ontario Provincial Police
and on charges relating to the Metropolitan Toronto Police and the
Royal Canadian Mounted Police.
C. Theories of the Parties
This is was a long and complex trial in which virtually everything
was in issue. Many of the same issues now form grounds of appeal. In
summary, it was the position of the Crown that the appellant Church
of Scientology of Toronto, a non-profit religious corporation, had
authorized members of the Church to infiltrate government agencies
and other organizations such as the Canadian Mental Health Association
in order to obtain
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information that would be of use to the Church. It was the Crown's
theory that the appellant perceived that it was under attack by these
organizations. The appellant resorted to the "plant" operations when
other more direct means, such as break and enter, were judged to be
too dangerous. These operations were run by Jacqueline Matz out of
the Intelligence Bureau which was an arm of the Guardian's Office
within the Church. The Crown relied on the doctrine of corporate
criminal liability as explained in Canadian Dredge & Dock Co., Ltd.
v. The Queen, [1985] 1 S.C.R. 662, which, subject to certain
conditions,
holds a corporation liable for the acts of certain of its agents.
It was the position of the appellant, the Church of Scientology
of Toronto, that it was not legally responsible for the actions of
its "renegade members" in the Guardian's Office who had failed to
follow Church doctrine. The appellant contended that the
information-gathering functions carried out by the Guardian's
Office in Toronto were assigned to it by the Church of Scientology
of California (U.K.) (Guardian Office World Wide), not by the Church
of Scientology of Toronto. The appellant also made the broad
submission
that the doctrine of corporate criminal liability does not apply to
non-profit religious corporations.
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The appellant Matz did not testify. The theory of her defence was
based on gaps in the Crown's case with respect to each of the counts.
In relation to the charge involving the O.P.P., she argued that there
was no breach of trust since the information obtained by the agent
was unimportant. With respect to the count involving the Ministry of
the Attorney General, she argued that the Crown's evidence was
unreliable and that, in one of the incidents relied on by the Crown,
no confidential information seems to have been obtained.
D. Corporate Management Structure
A critical aspect of this appeal concerns the application of the
doctrine of corporate criminal liability to a non-profit religious
corporation. The application of the doctrine is complicated by the
unconventional corporate structure adopted by the various corporate
members of the Church of Scientology, including the Church of
Scientology of Toronto.
At the time material to this case, the Church of Scientology was
a world wide organization with hierarchical structure. L. Ron
Hubbard, the Founder, stood at the top of the hierarchy in England.
Second in command was Mary Sue Hubbard, the Controller. Directly
beneath her was Jane Kember, the Guardian. Below these officials,
Scientology
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organizations were separately incorporated in various cities
throughout the world. The Church of Scientology of Toronto was one
such organization.
The Church of Scientology of Toronto was incorporated as a
corporation
without share capital on September 8, 1967 under the Ontario
Corporations
Act, R.S.O. 1960, c. 71 (now R.S.O. 1990, c. C.38). The administration
of the corporation and, indeed, of all Scientology organizations, was
dictated by a series of policies written by the Founder. L. Ron
Hubbard.
These policies governed a variety of administrative matters, including
the command and communication channels, the positions within the
organization and the division of responsibilities among Scientology
officials.
The Church of Scientology of Toronto was managed through two command
structures. The FLAG Bureau, which was part of the Sea Organization,
was responsible for the day-to-day delivery of Scientology services to
the public at the local Toronto organization ("Org"). The Org was
under
the management and control of an Executive Director. The Executive
Director received direction from his seniors in the FLAG Bureau
network, who received direction from L. Ron Hubbard.
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The other management structure was the Guardian's Office. Its
purpose
was to help L. Ron Hubbard enforce and issue policy to safeguard
Scientology organizations. Like the FLAG Bureau, the Guardian's Office
was run along hierarchical reporting lines. The Guardian's Office
Toronto reported to the Guardian's Office Canada, which in turn
reported to the Guardian's Office World Wide, and ultimately to L.
Ron Hubbard. Directions were sent "down-lines" through the same
structure.
Like the Guardian's Office World Wide and the Guardian's Office
Canada, the Guardian's Office Toronto was comprised of four bureaus,
each of which was delegated a specific sphere of managerial authority.
These bureaus were: the Legal Bureau, the Finance Bureau, the Public
Relations Bureau and the Intelligence Bureau. The purpose of the
Intelligence Bureau was to find out about those whom L. Ron Hubbard
had identified as Scientology's enemies so that attacks could be
diverted before they became public issues. When he established the
Guardian's Office, L. Ron Hubbard issued a policy letter entitled
"The Guardian", which assigned intelligence functions to that office,
and described the purpose of intelligence in colourful terms:
By such studies one can predict which way cats are going
to jump and organize to meet situations which may threaten
Scientology from possible enemies or to take advantage of
situations which might benefit Scientology.
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The Intelligence Bureau of the Guardian's Office Toronto carried the
plant operations that were the subject-matter of the charges.
On the theory of the Crown, while the two management structures, the
FLAG Bureau and the Guardian's Office, had different functions, both
were integral to the operation of the Church of Scientology of
Toronto.
Although the local Guardian's Office took direction from, and reported
to, its senior officials in England, it exercised a senior management
function within the local Church. The management of the local Org
could
not tell the Guardian's Office what to do; in contrast, the Guardian's
Office could, and did, give orders to local management regarding the
safety and security of Scientology. The operations of the Guardian's
Office Toronto were financed by money collected by the local Org.
On the theory of the appellant Church, the Guardian's Office was
separate from the Church of Scientology of Toronto. It was autonomous
and self-ruling and not fixed to any local Church of Scientology. It
had its own doctrine and policy. In particular, the appellant argued
that the intelligence operations were conducted secretly, without the
knowledge of the Church of Scientology of Toronto.
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E. Crown Witnesses
The main witnesses called by the Crown at trial were five former
members of the Church of Scientology. Four of these witnesses occupied
senior management positions in the organization at the time of the
offenses. They participated in and, in some cases, directed the
illegal activities of the Guardian's Office Intelligence Bureau. They
testified under the protection of immunity agreements that required
that they disclose fully and truthfully their knowledge about the
offences before the court. These witnesses were:
(i) Bryan Levman, former Deputy Guardian Canada who was
responsible
for all of the activities of the Guardian's Office in Canada;
(ii) Emile Gilbert, former Executive Director of the Church of
Scientology of Toronto who after being removed from this
position in the Church, became an agent for the Guardian's
Office Canada;
(iii) Kathryn Smith, who worked as a plant at the Ontario Provincial
Police for the Guardian's Office Canada Intelligence Bureau;
(iv) Dianne Fairfield, who held various positions within the
Guardian's Office Canada Intelligence Bureau; and
(v) Marion Evoy, Deputy Guardian Intelligence Canada who was
responsible for the direction of the individuals who were
plants in organizations at the time of the offences.
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The above witnesses testified about various matters, including the
corporate management structures within the Church of Scientology of
Toronto; the role and function of the Guardian's Office within the
Church of Scientology of Toronto; the structure and functioning of
the Guardian's Office Intelligence Bureau; and the specifics of the
plant activities that were the subject-matter of the charges.
It is unnecessary to set out in detail the evidence of each of these
witnesses. However, the evidence of Bryan Levman man was of particular
importance to the Crown's theory of corporate liability, and requires
some elaboration. Mr. Levman established the first Guardian's Office
in Canada in 1970 when he was appointed Assistant Guardian Toronto. At
that time, the Church of Scientology of Toronto was the only
Scientology
organization in Canada. The Guardian's Office Canada was under the
authority of the Guardian's Office United States. In 1973, the
Guardian's
Office Canada was removed from the authority of the United States and
began reporting directly to the Church officials in England, Church of
Scientology of California (U.K.). Mr. Levman became the Deputy
Guardian
Canada and reported to the Guardian World Wide in England.
Between 1971 and 1973, there was no separate Guardian's Office
Toronto.
The Guardian's Office Toronto was established late in 1973 and was
headed
by an Assistant
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Guardian. The of Guardian's Office Canada and the Guardian's Office
Toronto were in the same building in the Church of Scientology
premises
in Toronto. Most of the work conducted by the Guardian's Office Canada
related to the Church of Scientology of Toronto. Although official
appointments of staff to the Guardian's Office Toronto came from the
Guardian's Office World Wide, they were selected from individuals
working in the Toronto Org.
As required by the Corporations Act, the appellant Church had a
board of directors. In the early years, senior officials within the
Church held positions on the board. Mr. Levman, for example, was
president from 1969 to 1973. Mr. Levman testified, however, that
the board of directors exercised no executive or management function.
According to him, the corporate structure as set out in the filings
for government purposes was irrelevant. The true management authority
lay in the Guardian's Office and the FLAG Bureau. Further, the choice
of directors was made by the Guardian's Office.
As noted above, within the Guardian's Offices Toronto and Canada
there were several different bureaus including the Intelligence
Bureaus.
Although the Intelligence Bureau of the Guardian's Office Canada
was responsible for Canada-wide intelligence gathering most of
the intelligence operations were focused in Toronto. The Canada
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Intelligence Bureau therefore worked closely with the Toronto
intelligence Bureau. The Deputy Guardian Intelligence Canada, Marion
Evoy, reported to the Deputy Guardian Canada, Bryan Levman.
In June and July of 1973, Mr. Levman went to the Guardian's Office
World Wide in England. While there, he confirmed that the
intelligence-gathering techniques could include "rip-offs", that is,
the placing of agents and the theft of files. The Guardian World Wide,
Jane Kember, identified targets. She was particularly interested in
the O.P.P., the Ministry of the Attorney General and the Metropolitan
Toronto Police. She made it Mr. Levman's mandate to obtain files from
these organizations. After returning to Canada in the fall of 1973,
Mr. Levman took steps to implement the Guardian's instructions. He
evaluated candidates to be planted in the "enemy" organizations. The
plant operations were under the purview of the Intelligence Bureau of
the Guardian's Office Toronto. Mr. Levman and Ms. Evoy both received
reports on the activities of the plants.
An important event leading to the use of plants rather than more
direct illegal means was the arrest of Alan Coulson and Michael
Chornopesky in April 1974. They were arrested while attempting to
break
into a law firm that was acting for former members of Scientology who
were engaged in litigation with the Church. Levman had ordered this
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break-in as he was to be a witness on an examination for discovery the
following day. When the examination for discovery took place, Levman
was asked if he knew Coulson. Levman lied and denied knowing him. Mr.
Levman and others took elaborate precautions to erase any connection
between Coulson and Chornopesky and Scientology. After this incident,
Jane Kember instructed Levman and Evoy not to conduct break and
enters.
Instead, they were to plant trusted Scientologists within the enemy
organizations.
The Crown also called as witnesses individuals from the various
organizations that had been the targets of the plant operations. These
individuals testified about the employment history and duties of the
individuals whom the Crown alleged to be Scientology plants. In
addition,
in many instances, these witnesses were able to confirm that their
confidential files did, in fact, contain documents and information
that other Crown witnesses reported having been obtained by
Scientology
plants.
F. Defence Witnesses
The appellant Church called a number of witnesses at trial,
including
the former Guardian World Wide, Jane Kember. She testified that she
authorized the illegal activities that were carried out by the
Guardian's
Office Toronto. The bulk of her evidence,
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however, was that illegal activities were a fraud on the of
Scientology
of Toronto and the other Churches of Scientology. She testified that
she abused Church doctrine and the original mandate set out by Mr.
Hubbard in "The Guardian". She drew a distinction between the Church
of Scientology of Toronto and the Guardian's Office. It was her view
that the local Church could not authorize the Guardian's Office to
commit illegal acts. The two command structures were not connected,
and the local Church had no "command value" over the Guardian's
Office.
To the contrary, the Guardian's Office had the ultimate power. Its
activities were kept secret from the local Church.
G. The Breach of Trust Counts
The breach of trust convictions arose from intelligence operations
carried out by the Guardian's Office Intelligence Bureau and directed
at the O.P.P. and the Ministry of the Attorney General. In each
instance,
a plant was placed in the organization to acquire and make copies of
confidential documents. The unauthorized disclosure of information
acquired by the plant through his or her employment, constituted the
breach of trust. As indicated above, as the "Case Officer", Ms. Matz
directed the plants to files of interest and facilitated the
acquisition
of confidential materials.
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1. Breach of Trust at Ontario Provincial Police
The O.P.P. were of interest to the Guardian's Office as it was
believed that they were investigating Scientology. Cynthia Bake became
a plant at the O.P.P. after being approached by a case worker for the
Guardian's Office Intelligence Bureau. Ms. Bake was a "public person"
in the Church of Scientology of Toronto; she was not a staff member,
but talking courses at the Toronto location. She obtained a clerk
position with the O.P.P. Intelligence Branch in the general
headquarters
building. She swore an oath of office and secrecy, and worked in this
capacity from May 1976 until November 1976.
As a plant, Ms. Bake reported to Jacqueline Matz. She testified at
trial that she was pressured by Ms. Matz to find out what was in the
O.P.P. files. She looked in the files, but could not find anything
relating to Scientology. She took another piece of paper, which
referred to the "Moonies", and gave it to Ms. Matz. Eventually, Ms.
Bake did not wish to continue acting as a plant, and she resigned.
2. Breach of Trust at Ontario Ministry of the Attorney General
The breach of trust at the Ontario Ministry of the Attorney General
involved a second plant. Janice Wheeler was a Scientologist who worked
in the Toronto Organization and had been trained as a legal secretary.
In 1974, she secured employment as a secretary
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with the of Attorney General in the Director of Crown Attorneys
branch.
She provided several internal memoranda, sent between people in the
Attorney General's office, to the Guardian's Office Intelligence
Bureau.
In total, Ms. Wheeler obtained approximately two to three file folders
of documents from the Attorney General's office.
Janice Wheeler testified at trial that, as a result of her
employment,
she had access to a key that would open the door to the archives in
the
basement of the Attorney General's office. On three separate
occasions,
Scientologists gained access to the archives to search for files on
Scientology. On one occasion, Ms. Evoy, the Deputy Guardian
Intelligence
Canada, removed a file from the archives and sent it to the Deputy
Guardian Intelligence Office United States. The file was later
discovered
by the F.B.I. during a search of the Scientology premises in the
United
States.
Ms. Evoy described another incident where she met Janice Wheeler at
the Attorney General's of office. After all the staff had left, Ms.
Wheeler took her inside and the two of them looked for files relating
to the Church of Scientology. Ms. Evoy testified that they searched in
the office of Donald MacKenzie, who was a lawyer responsible for some
matters involving Scientology. Nothing was taken on this particular
occasion.
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Ms. Evoy described other occasions when she obtained Ministry files
directly from Janice Wheeler. At one point, the two met in the
bathroom
at the office, and Ms. Wheeler gave Ms. Evoy a file relating to the
Church of Scientology. Ms. Evoy copied the file and returned it to Ms.
Wheeler so that it court be returned to the Ministry.
H. Pre-Trial Motions
The trial judge heard several pre-trial motions in this case. Some
of
the motions are relevant to the grounds of appeal now raised by the
appellants. In particular, the motions concerning exclusion of
evidence,
adequacy of Crown disclosure, and jury selection, will be dealt with
under the relevant ground.
I. Grounds of Appeal
Counsel for the appellants advanced numerous grounds of appeal, some
of which were abandoned at the hearing. The principal remaining issues
in the appeal are:
(i) whether the jury was properly constituted having regard to
the exclusion of certain persons, such as non-citizens, from
the array;
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(ii) whether the identification doctrine of corporate liability as
explained in Canadian Dredge & Dock applies to a non-profit
corporation without share capital established for religious
purposes; and
(iii) whether there was sufficient evidence to meet the test for
corporate criminal liability, and, alternatively, whether
the jury was adequately directed with respect to corporate
criminal liability.
We called on Crown counsel to respond to these issues as well as to
the
sentence appeal.
Before discussing these main grounds of appeal, I turn to several
grounds of appeal that can be disposed of with brief reasons.
II. ORDER OF CLOSING ADDRESSES
In her factum, the appellant Matz argues that the provisions of s.
651 of the Criminal Code that dictate the order of closing addresses
violate her rights under ss. 7 and 11 of the Charter. In view of the
decision of this court in R. v. Rose (1996), 28 O.R. (3d) 602, leave
to
appeal to Supreme Count of Canada granted February 7, 1997 (subsequent
to
-18-
the hearing of this appeal), no oral submissions were made on this
point. This ground of appeal fails.
III. SIMILAR FACT EVIDENCE
The appellants submit that the trial judge erred in permitting the
Crown to introduce evidence of criminal acts, other than those in the
indictment, allegedly committed by members of the Church of
Scientology
of Toronto. For example, he permitted the Crown to lead evidence that
staff from the Guardian's Office had broken into government offices
and other organizations. Evidence was led about the arrest of the two
Scientology members, Coulson and Chornopesky, who had attempted to
break
into a law firm that was acting for former members of Scientology
engaged in litigation with the Church. Evidence was also led of an
attempt to obtain a file from the Ministry of the Attorney General by
impersonation of one of the Ministry's counsel.
In our view, the trial judge did not err by admitting this "similar
act evidence". He initially held that this evidence was admissible as
tending to show that the acts charged were committed with the
knowledge
and authority of the Church of Scientology of Toronto. The evidence
was
relevant to the issue of whether the Guardian's Office was acting on
behalf of the corporate appellant. As this court noted in R. v.
McNamara
et al, (No 1) (1981), 56
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C.C.C. (2d) 193 at 293, "Proof of the repetition of wrongful acts by
the agents of a corporation may be sufficient to permit a jury to
infer
that the acts charged in the indictment were carried out with the
knowledge and approval of those in charge of the corporation."
Some of the evidence, especially that relating to the arrest of
Coulson and Chornopesky, was also admissible as part of the narrative
to explain steps taken by the Guardian's Office in relation to the
charged acts.
By the end of the case, the trial judge had concluded that this
evidence was not relevant to any issue in dispute and he instructed
the
jury accordingly. For example, the trial judge directed the jury as
follows:
The Crown has led evidence of other criminal acts alleged to have
been done by Scientologists. I have not referred to this evidence,
because, if believed, it goes no further than to show that the
criminal acts were committed with the authority of the Guardian
Office in Toronto, and it was for that purpose that I permitted
this similar fact evidence to be given. _But that evidence throws
no light one way or the other on the point to issue as to whether
the persons in the Guardian Office in Toronto were acting within
the field of operation of Church of Scientology of Toronto that
had been assigned to them._
Now, there is a very important point that I asked you to keep in
mind respecting this evidence of other criminal acts. You must not
rely on this evidence as evidence that Church of Scientology of
Toronto had a propensity to condone or authorize criminal offences,
and so was likely to have authorized the criminal acts
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with which it is here charged. _You should not rely on this evidence
of other criminal acts in any way in determining the guilt or
innocence of the individuals accused in any of the counts before
you. It can only be used by you for the limited purpose I have
explained, in determining the guilt or innocence of the corporate
accused, the Church of Scientology of Toronto. And I repeat, in my
view it does not advance the case there,_ because it only takes
you to the Guardian Office, and then you are faced with the
question:
Was the Guardian Office the directing mind of Church of
Scientology
of Toronto in a field of operation assigned to it? And was it not
totally in fraud of that corporation? And was it, by design or
result, for the benefit of that corporation?
[Emphasis added.]
Similar forceful directions to ignore this evidence on the issue of
corporate criminal liability were repeated on several occasions.
The appellants were not unfairly prejudiced by the admission of
this evidence. In fact, the trial judge's instruction to the jury to
ignore this evidence was overly favourable to the appellants. This
ground of appeal fails.
IV. EXPRESSION OF OPINION BY THE TRIAL JUDGE
Mr. Ruby argues that the trial judge repeatedly and forcefully
expressed his opinion on the central issues in the case, and usually
in a manner favouring conviction. In
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our view, is not a fair characterization of the charge to jury when
it is read as a whole. Mr. Ruby takes specific exception to thirteen
comments by the trial judge in the course of the lengthy charge.
However, when those comments are considered in context, it is apparent
that they did not deprive the appellants of a fair trial. This was
a lengthy case with a number of complex issues. It was entirely
appropriate for the trial judge, where possible, to simplify the
issues for the jury. Many of the comments about which the appellants
complain concerned issues that were relatively non-controversial;
other comments were part of a balanced review of the evidence; still
others, when examined in context, actually favoured the defence
position.
It is well established that a trial judge has considerable latitude
to offer opinions in the charge as long as it is made clear to the
jury that they are the sole judges of the facts and that they are
free to reject the trial judge's opinion. See R. v. A.W.E., [1993] 3
S.C.R. 155. In this case, the trial judge repeatedly stressed to the
jury that they were not bound by any of his expressions of opinion on
matters of fact. On all but one occasion to which objection is taken,
he specifically cautioned the jury that they were not bound by his
opinion and that it was a matter for them to decide. The one
instance in which the trial judge did not so caution the jury was a
question of fact concerning the relationship between the Guardian's
Office Canada and the Guardian's Office Toronto. That relationship
was not
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seriously in dispute in the case. Moreover, in the one area of the
case where the distinction was of some import, a plant in the R.C.M.P.
in Ottawa, the jury acquitted the Church. This ground of appeal fails.
V. "REPLY" TO DEFENCE COUNSEL'S JURY ADDRESS
Mr. Ruby argues that the trial judge engaged in "contentious
argument" during his charge by responding to certain remarks in
defence counsel's jury address. In our view, the trial judge's
comments were not inappropriate. Indeed, they were necessitated by
certain statements by defence counsel that were legally incorrect or
would have had the effect of diverting the jury from the real issues
in the case. This ground of appeal fails.
VI. CREDIBILITY OF PRINCIPAL CROWN WITNESSES
Mr. Norris makes a number of submissions with respect to the trial
judge's charge to the jury on the credibility of the principal
Crown witnesses. Five of these witnesses, Bryan Levman, Emile Gilbert,
Kathryn Smith, Dianne Fairfield and Marion Evoy, had formerly been
members of Scientology and testified under the protection of immunity
agreements.
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In 1983, Mr. Levman, Mr. Gilbert and Ms. Smith were declared
"suppressive persons", and expelled from Scientology. When they
learned that the police were investigating the Church of Scientology
of Toronto, they became concerned that they would be charged with
criminal offences. In early 1984, they entered into immunity
agreements with the authorities, which provided that they would not
be prosecuted for any offices arising out of the investigation, on
the condition that they would fully disclose their involvement with
the Church and testify accordingly.
Dianne Fairfield was removed from her post as Assistant Guardian
Social Coordination in Toronto in 1982 after admitting to
representatives
of the FLAG Bureau that she had been involved in criminal activities.
In the fall of 1984, she entered into an immunity agreement with the
authorities. Although the agreement was similar to that of the other
witnesses, it included the additional condition that her information
advance "in a material fashion, the information obtained from previous
witnesses."
In 1981, while Marion Evoy was the Deputy Guardian Canada, she was
investigated by members of the Sea Organization and required to enter
into a programme of confession and punishment because of her
involvement
in illegal acts. She was told to write out a list of her actions and
to
admit, in writing, that she was responsible for all of the actions
-24-
she had directed. Ms. Evoy gradually withdrew from the Church and, in
the fall of 1984, entered into an immunity agreement similar to that
of Ms. Fairfield.
Mr. Norris argues that the trial judge did not give an adequate
warning as to the danger of relying on the evidence of the Crown
witnesses, as required by R. v. Vetrovec, [1982] 1 S.C.R. 811. Mr.
Norris also argues that the evidence relied on by the Crown to confirm
the testimony of the Crown witnesses did not in fact do so. We only
called upon Crown counsel to respond to the latter argument.
A. Adequacy of the Vetrovec warning
In Vetrovec, Dickson J. held that where the trial judge decides that
some caution should be given to the jury about the evidence of suspect
witnesses, no particular rule, formula or direction must be followed.
He held at p. 831 that what may be appropriate is a "clear and sharp
warning to attract the attention of the juror to the risks of
adopting,
without more, the evidence of the witness."
Mr. Norris submits that the language used by the trial judge in this
case did not accomplish this task. He points out that the trial judge
told the jury that they "may consider"
-25-
that they required some confirmatory evidence before accepting the
testimony of the five suspect witnesses.
In our view, examination of the charge as a whole reveals that the
jury was adequately warned of the danger of accepting the witnesses'
testimony. The trial judge reviewed the various factors that would
cause the jury to be cautious, and pointed out the following:
(i) the five witnesses had all participated in the allegedly
illegal acts, and despite their significant role, had not
been prosecuted;
(ii) the witnesses had "bought" their immunity by agreeing to
testify against the Church of Scientology of Toronto;
(iii) the witnesses had come forward not out of a sense of remorse,
but because they believed that they would be charged
themselves;
(iv) Mr. Levman had admired to perjuring himself in civil
proceedings concerning Mr. Coulson and Mr. Chornopesky; and
(v) Ms. Fairfield and Ms. Evoy were required to advance the
Crown's case as a condition of obtaining immunity.
-26-
The trial judge warned that they "should examine very carefully" the
evidence of these witnesses before acting on it. It was in this
context
that the trial judge instructed the jury that they "may consider" that
they required some confirmatory evidence.
In our view, it is insignificant that the trial judge told the jury
that they "may consider" the need for confirmatory evidence rather
than they "should" look for such evidence. In Vetrovec itself, Dickson
J. stated at p. 832 that it would have been sufficient if the trial
judge had said that "it would be wise" to look for supporting
evidence.
When coupled with the extensive reference to the reasons for
approaching
the testimony of the suspect witnesses with caution, the language used
by the trial judge in this case sufficiently conveyed the need for
care in adopting, without more, the evidence of these witnesses.
The trial judge concluded his charge concerning the suspect
witnesses
by suggesting that they were not "ordinary criminals" in that they
had not acted for selfish reasons, but because they thought they were
benefiting their religion. Mr. Norris submits that this final
direction
undermined the earlier caution. We do not agree. It was open to the
trial judge to point out other factors that he considered to be
relevant to the credibility of the witnesses. His concluding comments
would not have led the jury to believe that his much
-27-
lengthier comments detailing the frailties of the witnesses'
credibility
were to be ignored. There is no merit to this ground of appeal.
B. Confirmatory Evidence
Mr. Norris submits that the evidence on which the Crown relied to
support the testimony of the suspect witnesses was not capable of
confirming the evidence in the relevant sense. He argues that to
qualify as confirmatory, the evidence must implicate the accused in
the commission of the offence. It is his position that the evidence
relied on by the Crown merely supported the witnesses' evidence as
to their own roles in the offenses. We called on the Crown to respond
to this ground of appeal.
The trial judge left six items of evidence with the jury as
potentially confirmatory. It is unnecessary to address all of them;
reference to two will suffice. First, Ms. Fairfield and Ms. Evoy both
described the contents of files that had been obtained from the
Metropolitan Toronto Police. The trial judge pointed out that
Sergeant Dimmock described the contents of a file kept by the police
on the Church of Scientology, and that the file contained documents
similar to those described by Fairfield and Evoy.
-28-
Second, Ms. Evoy testified that she had received a file from Janice
Wheeler in the bathroom of the offices of the Ministry of the Attorney
General. She described the file as relating to the application by the
Church of Scientology under the Marriage Act, R.S.O. 1970, c.261 (now
R.S.O. 1990, c.M.3) for authority to solemnize marriages and regarding
a complaint that a title used by the Church resembled that of a
government department. Mr. Polika, who had been counsel for the
Ministry of the Attorney General, testified that these two matters
had been the subject of work within the Ministry at the time.
In my view, this evidence and the four other similar items were
properly left to the jury as potentially confirming the testimony of
the Crown witnesses. The evidence did not merely show the witnesses'
own involvement in the offenses. As Dickson J. made clear in Vetrovec
at pp. 826-28, confirmatory evidence need not, itself, implicate the
accused. Rather, it must confirm some material aspect of the suspect
witness' testimony. Once such confirmation is supplied, the suspect
witness' testimony may be made more credible as a whole.
In this case, the trial judge pointed out that the testimony of
Sergeant Dimmock and Mr. Polika did not directly implicate the
accused.
It did, however, support material aspects of the Crown witnesses'
testimony. It tended to confirm that the Guardian's Office
-29-
had acquired confidential information from the target organizations,
and that it had done so through the illegal plant operations. If Ms.
Evoy, for example, was telling the truth about this aspect of her
testimony, she may have been telling the truth about the purpose of
the plants and who their actions were intended to benefit. In short,
the evidence was capable of strengthening the belief that the Crown
witnesses were telling the truth about the appellants' roles in the
offences.
VII. DISCLOSURE
In their factum, the appellants make a broad attack on the adequacy
of disclosure by the Crown and the trial judge's rulings refusing to
require further disclosure of certain categories of documents. In
particular, the appellants focus on the refusal of the trial judge
to order disclosure of documents in the possession of the Ontario
Ministry of Consumer and Commercial Relations. On the hearing of the
appeal, the appellants abandoned most of these grounds of appeal.
They limited their submissions respecting disclosure to one issue,
namely, whether the Crown was required to provide to the defence an
inventory of all of the material in the possession of the O.P.P. that
had not been disclosed to the defence.
-30-
It is important to place this in its proper context. In his
submissions to the trial judge, Mr. Stewart, counsel for the Crown,
set out a detailed history of the extensive disclosure that had, to
date, been provided to the defence. This history included reference
to the following:
(i) The defence had disclosure of the testimony of four former
Scientologists, taken before the justice of the peace
pursuant to s. 509 of the Criminal Code, prior to the
issuance of process. The transcript consisted of
approximately
300 pages of evidence.
(ii) The defence received copies of all documents to be relied on
by the Crown, and "will-say" statements of witnesses. This
material consisted of several volumes, and was in excess of
2,600 pages.
(iii) The defence received copies of lengthy statements provided to
the police by the five former Scientologists who ultimately
testified at trial.
(iv) The defence received copies of lengthy statements provided to
the police by other individuals who had previously been
affiliated with the Church of Scientology of Toronto, and
whom the Crown did not propose to call as witnesses.
(v) The defence had the benefit of a full and lengthy preliminary
inquiry, during which they had extensive opportunity to
question, by means of cross-
-31-
examination, witnesses called by the Crown. The Crown called
40 witnesses to testify at the preliminary inquiry, many of
whom were subject to lengthy and detailed cross-examination.
The evidentiary portion of the hearing extended over
approximately 31 weeks of court time.
(vi) The defence obtained almost wholesale access to the
Metropolitan Toronto Police files relating to the Church of
Scientology. This included access to an internal report
prepared by the Metropolitan Toronto Police and the O.P.P.
on the activities of the Church of Scientology of Toronto,
which consisted of 1,477 pages, and which was subject to
only minimal editing.
(vii) Toward the conclusion of the preliminary inquiry, on January
25, 1990, counsel for the Crown and defence negotiated and
entered into a broad disclosure agreement, which set terms
governing disclosure of a wide range of documentary materials
that were of interest to the defence.
(viii) Following the preliminary inquiry, the defence continued to
receive further disclosure. For example, defence counsel were
provided with numerous documents relating to the execution
of the search warrant on the premises of the Church of
Scientology of Toronto in March 1983.
-32-
As noted above, toward the conclusion of the preliminary inquiry,
counsel for the Crown and counsel for the defence had signed an
extensive disclosure agreement. This agreement set out a number
of matters that would be disclosed "in the interest of affording
the defence the discovery they seek, and of bringing the preliminary
inquiry to a close". Among other matters, the Crown agreed to disclose
the following:
(i) a photocopy of the notes, in transcript form, made by
Constable John Cunha while he was working in an undercover
capacity for the O.P.P. at the Church of Scientology of
Toronto from January 22, 1981 until May, 26, 1982;
(ii) a photocopy of the notes, in transcript form where
available, made by Constable Barbara Taylor while she was
working in an undercover capacity for the O.P.P. at the
Church of Scientology of Toronto from September 18, 1980
until March 3, 1983;
(iii) Scientology documents accumulated by Constables Cunha and
Taylor while they were on undercover duties;
(ix) a photocopy of all of the notes or diary entries made by
Detective Sergeant Ciampini, the lead investigator,
throughout the investigation from 1972 to December 1, 1984;
-33-
(v) a photocopy of O.P.P. Criminal Investigation Branch file
29080 ("Project 20") memoranda relating to the investigation
of the activities of the Church of Scientology of Toronto
for the period commencing in January 1980 and culminating
in the execution of the search warrant in March 1983;
(vi) documents acquired by the O.P.P. from the F.B.I. in the
United States in early 1980;
(vii) background documents acquired by the O.P.P. in relation
to the Project 20 investigation of the activities of the
Church of Scientology of Toronto from January 1980 until
December 1, 1984;
(viii) background reports or documents relating to the joint
O.P.P.-Metropolitan Toronto Police report of 1977;
(ix) a photocopy of memoranda made by Inspector John Germain or
Detective Sergeant Ciampini in relation to the purpose of
trips to the United States, following the execution of the
search warrant errant, in connection with the Project 20
investigation of the activities of the Church of Scientology
of Toronto; and
(x) a photocopy of reports and documents contained in the O.P.P.
security branch file for the period September 1972 through
1976 relating to the activities of the Church of Scientology
of Toronto.
-34-
In addition to the items included in the disclosure agreement, Crown
counsel had continuously responded to specific requests from defence
counsel. After the trial judge ruled that Crown counsel was not
required to provide an inventory of all of the material not yet
disclosed, defence counsel made specific requests for certain items.
Crown counsel reported to the trial judge that some of these items
had already been disclosed, and that the others would be.
The trial judge also dealt with a specific concern relating to
statements provided to the O.P.P by certain individuals in the
United States. The existence of these statements had been made
known to the defence, but Crown counsel had refused to disclose
the material on the basis that it was irrelevant. The trial judge
reviewed the material and determined that certain items should be
disclosed.
In our view, Crown counsel had met its disclosure obligations and
was not required to provide the inventory sought by the defence. In
R. v. Chaplin, [1995] 1 S.C.R. 727, Sopinka J. dealt with the
procedure where, as here, the Crown claims that it has discharged
its disclosure obligations and Crown counsel denies that he or she
is aware of the existence of any other relevant material. Sopinka
J. held as follows at page 743-4:
In contrast to the above, in some cases, this being one, the
existence of material which is alleged to be relevant is disputed by
-35-
the Crown. Once the Crown alleges that it has fulfilled its
obligation to produce it cannot be required to justify the
nondisclosure of material the existence of which it is unaware
or denies. _Before anything further is required of the Crown,
therefore, the defence must establish a basis which could enable
the presiding judge to conclude that there is in existence further
material which is potentially relevant._ Relevance means that
there is a reasonable possibility of being useful to the accused
in making full answer and defence. The existence of the disputed
material must be sufficiently identified not only to reveal its
nature but also to enable the presiding judge to determine that
it may meet the test with respect to material which the Crown is
obliged to produce as set out above in the passages which I have
quoted from R. v. Stinchcombe [[1991] 3 S.C.R. 326] and R. v.
Egger [[1993] 2 S.C.R. 451].
....
Apart from its practical necessity in advancing the debate
to which I refer above, _the requirement that the defence
provide a basis for its demand for further production serves
to preclude speculative, fanciful, disruptive, unmeritorious,
obstructive and time-consuming disclosure requests. _ In cases
involving wiretaps, such as this appeal, this is particularly
important. Fishing expeditions and conjecture must be separated
from legitimate requests for disclosure. [Emphasis added.]
In view of the extensive disclosure that had already been made by
the Crown in this case, the further demand by the defence is properly
characterized as "speculative, fanciful, disruptive, unmeritorious,
obstructive and time-consuming". Despite the mass of material that
was disclosed to the defence over the many years leading up to the
trial and during the trial itself, defence counsel at the trial and
on the appeal were unable to point to a single document that _might_
exist that would be relevant to the case and that had not been
-36-
disclosed. Put another way, assuming as we must that the defence had
carefully examined all of the disclosed material and the evidence from
the preliminary inquiry, defense counsel were nevertheless unable to
point to anything that suggested that full disclosure of all relevant
material had not been made. In our view, this is particularly telling
since defence counsel were provided with copies of all of the notes of
the lead investigator Detective Sergeant Ciampini, all of the
memoranda
from the O.P.P. file relating to the investigation, and all of the
reports and documents relating to the joint O.P.P.-Metropolitan
Toronto
Police investigation.
In his argument before us, Mr. Norris focused on submissions by
Crown
counsel at trial as an admission that other relevant and undisclosed
material existed. The excerpt from the Crown's statement was as
follows:
Mr. Ruby was saying, basically, "I need a list of everything the
police have, and it's up to the Crown to go into the police files
with the police and provide it. Otherwise, I don't know what's been
withheld. If I have any dispute about it then this material has got
to be lugged into court for you to review." And we take very strong
exception to that approach under Stinchcombe. I certainly was not
looking forward to having any direction from you to go back out to
Mississauga to attempt to determine what, if anything -- _and I am
sure I will find materials. I don't want to mislead you in any way,
because there are so many materials in this case, that if I didn't,
it would be an astonishing fact._ But I didn't want to go back out
and have to inventory materials which the O.P.P. happened to have.
[Emphasis added.]
-37-
In our view, to this statement by Crown counsel was not sufficient
to discharge the burden on the defence as enunciated by Sopinka J.
in Chaplin. To the contrary, when the entirety of Crown counsel's
submissions before the trial judge are reviewed, it is apparent that
counsel believed that he had made disclosure of all relevant documents
of which he was aware. As would be expected in a case of this size and
complexity, Crown counsel could not state categorically that other
relevant documents did not exist. However, as pointed out in Chaplin,
before anything further was required of Crown counsel, the defence had
to establish a basis that could enable the trial judge to conclude
that there was some other potentially relevant material in existence.
Despite all of the tools at its disposal, including the massive
disclosure already made, defence counsel was unable to do so.
Finally, in our view the recent decision of the Supreme Court of
Canada in R. v. Carosella, a judgment of the Supreme Court of Canada,
released February 6, 1997 does not require a different result. In
that case, Sopinka J., for the majority, reaffirmed at para. 36 that
the obligation on the Crown is to produce material that "may" affect
the conduct of the defence. To repeat, Crown counsel in this case
asserted that he had produced all such material. This is not a case
like Carosella where the relevant document had not been disclosed
(because it had been destroyed). The burden was on the appellants
in this case to
-38-
show, per Chaplin, a basis from which the trial judge could conclude
that other potentially relevant material existed. They failed to so.
There is no merit to this ground of appeal.
VIII. EXCLUSION OF SECONDARY EVIDENCE
This ground of appeal arises out of the execution of a search
warrant by the police at the offices of the Church of Scientology of
Toronto. The trial judge found that the manner in which the search
warrant errant was executed violated the appellants' rights under s.
8 of the Charter. As a remedy, the trial judge excluded all of the
documents seized during the search. He also excluded certain
"secondary
evidence" with respect to charges of theft of confidential documents.
In the result the Crown was unable to prove the seven counts of theft
and in separate proceedings the appellants were acquitted on those
charges. The appellants submit, however, that the trial judge erred
in failing to exclude the secondary evidence on the breach of trust
counts.
A. The Motion to Exclude the Primary Evidence
On March 3 and 4. 1983, over a period of about 17 hours, the O.P.P.
executed a search warrant at the offices of the Church of Scientology
of Toronto Approximately two million documents were seized in
purported
execution of the warrant. The search warrant
-39-
referred to several complex offences tax fraud, fraud on the public,
and conspiracy. The appellant was never charged with these offenses.
Soon after the search and seizure, the Church launched an
application
to quash the warrant. It was heard by Mr. Justice Osler who upheld the
validity of the warrant. An appeal by the Church to this court was
dismissed: Re Church of Scientology et al. and the Queen (No. 6)
(1987).
31 C.C.C. (3d) 449. The court held that the fact that the police did
not execute the warrant errant in accordance with its terms could not
retroactively render the warrant invalid. The court, however left open
the effect of the alleged over-seizure. This set the stage for the
hearing before the trial judge.
The trial judge heard extensive evidence concerning the manner in
which the search was carried out. His most important finding was that
the police made a wholesale seizure of documents without regard to the
important limitation in paragraph 16 of the warrant. In that
paragraph,
the police were directed only to seize documents in the described
categories or classes if they related to certain specified time
periods
and related "directly to" the described offences. The trial judge
found that the police seized documents if they fell within the class
of documents and the time period irrespective of whether the documents
related directly to the described offences.
-40-
The police also seized a large number of "pre-clear" folders that
contained confidential information about persons "audited" by the
Church. The warrant authorized the seizure of pre-clear folders only
in relation to members of the Guardian's Office staff. However, 978
pre-clear folders relating to 641 parishioners were seized. Only five
of the seized folders related to Guardian's Office staff. Although
many of the improperly seized pre-clear folders were returned to the
appellant within months of the search, over 200 folders were not.
However, pursuant to a court order, the pre-clear files had been
ordered sealed pending determination of whether those files were
privileged.
in extensive reasons, the trial judge held that the manner in which
the search and seizure was executed was unlawful and constituted a
violation of the appellants' right to protection against unreasonable
search and seizure as guaranteed by s. 8 of the Charter. He found
that the police had not made a good faith attempt to stay within the
boundaries of the warrant. The trial judge rejected the Crown's
submission that the manner in which the search was conducted only
affected the reasonableness of the seizure of the documents outside
the terms of the warrant. He not only held that the seizure of so many
documents not covered by the warrant was unreasonable, but that the
manner in which the search was conducted tainted the entire seizure.
His reasoning is summed up in this portion of his ruling:
Having decided that the manner of search was unlawful in the case
at bar for failure to be governed by the concluding words of
-41-
Paragraph 16 of the warrant, would be inconsistent with the
purpose of s. 8 being that of preventing unjustified searches
before they happen, to now hold that the search and seizure of
some of the documents was not unreasonable because they would
properly have been seized if the search warrant had been properly
executed.
In my judgment, the seizure of the documents which the Crown
seeks to use in evidence was unreasonable because of the unlawful
manner in which the search and seizure was conducted. I do not
intend to lay down a rule of general application. My decision is
limited so the facts of this case, where the search was conducted
by a number of officers, where the provision in the warrant that
was not complied with was probably essential to the validity
of the warrant where the search covered a large number of articles,
and where there was, by anyone's analysis, a very substantial
overseizure. The unlawful manner of search might not have been
significant in a simple case.
The trial judge then turned to the difficult question of whether
the documents obtained as a result of the violation should be
excluded.
He reviewed the factors set out in R. v. Collins [1987] 1 S.C.R. 265.
He held that under the first set of factors, since the documents were
real evidence, their admission would not affect the fairness of the
trial. Under the second set of factors, the trial judge concluded
that the seriousness of the violation strongly favoured exclusion of
the evidence. The appellants place particular emphasis on the
following
part of the trial judge's reasons:
In considering the evidence respecting the search and seizure, I
found that _the police did not act in good faith,_ because so
many of them disregarded the concluding words of Paragraph 16
of the warrant, and there is no question that the evidence which
the Crown seeks to admit could have been obtained in a properly
conducted search [Emphasis added.]
-42-
The trial judge briefly the set of factors from Collins, namely the
effect of excluding the evidence on the integrity of the
administration
of justice. He pointed out that the evidence sought to be excluded
would provide powerful circumstantial evidence "that the thefts had
been committed", but that this would often be the case. The trial
judge
held that, on balance, the evidence should be excluded.
B. The Motion to Exclude the Secondary Evidence
Following the ruling concerning the exclusion of the seized
documents,
the appellants moved to exclude the "secondary evidence". The trial
judge characterized secondary evidence as including all evidence of
whatever nature discovered or generated after the seizure of the
primary evidence. The appellants had sought exclusion of the testimony
of the five witnesses who were discovered by, and gave statements to,
the authorities after the search and seizure. These were the five
ex-Scientologists, Bryan Levman, Marion Evoy, Kathryn Smith, Emile
Gilbert and Dianne Fairfield. The appellants had also sought exclusion
of any evidence discovered as a result of the interviews of these
five witnesses.
The evidence adduced before the trial judge appears to establish
that certain seized documents were immediately used by the police to
attempt to find witnesses. In
-43-
particular, the police had possession of a document "Suppressive
Persons
Declare". This document declared eight persons to be suppressive
persons
and expelled them from the Church. The police knew that these persons
might well be disposal to providing information to the authorities.
Three persons who later became Crown witnesses, Bryan Levman, Emile
Gilbert and Kathryn Smith, are named in this document.
Contact was made with the persons who became Crown witnesses
only after the lead investigator had travelled to the United States
and made contact with David Mayo and his lawyer, Gary Bright. David
Mayo was a former Scientologist based in the United States who had
set up an organization in competition with Scientology and who was
engaged in litigation with the Church of Scientology. Mayo and
Bright acted on behalf of the police in contacting the former
Scientologists and encouraging them to become Crown witnesses. Mayo
conveyed to these potential witnesses that they might be charged.
There was no evidence that Mayo or Bright had been shown any of the
documents that were seized in the search of the Church of Scientology
of Toronto.
The trial judge made a number of important factual findings
concerning the relationship between the seizure and the obtaining
of the testimony of the ex-Scientologists. Those findings may be
summarized as follows:
-44-
(i) over a year elapsed between the date of the unlawful search
and the interviews by the police of the Crown witnesses;
(ii) this delay is explained in part by the magnitude of the
seizure;
(iii) the significance of the delay is reduced by the fact that the
police tried unsuccessfully to interview persons named in the
"Suppressive Persons Declare" within two months of the
seizure;
(iv) two of the seized documents that were subject to solicitor
client privilege were used by the police in the investigation
and questioning of the Crown witnesses and must have assisted
the police in obtaining the cooperation of Emile Gilbert and
Kathryn Smith;
(v) the seized documents identified four entities that had been
targeted by the Church of Scientology of Toronto and were
previously unknown to the police, namely, the Ontario
Medical Association, the Royal Canadian Mounted Police, the
Metropolitan Toronto Police and a law firm acting for persons
engaged in litigation with the Church;
(vi) all of the ex-Scientologists were concerned that they might
be arrested as a result of evidence that would be discovered
in the
-45-
seized documents and this was an important factor in inducing
them to co-operate with the authorities; the trial judge
rejected the evidence of these witnesses to the extent that
they attempted to minimize the importance of the seized
documents in their decision to co-operate with the police;
(vii) it was "quite unrealistic" to suggest that these witnesses
would have decided to come forward and confess their
involvement in acts that occurred almost ten years earlier
had it not been for their fear of incriminating evidence
in the seized documents; and
(viii) the evidence given by these witnesses was influenced by the
contents "real or apprehended" of the seized documents.
Based on these findings, the trial judge held that there was a
causal
connection, if not a temporal connection, between the violation of the
Charter and the evidence obtained from the five ex-Scientologists.
Accordingly, the evidence had been obtained in a manner that infringed
the appellants' Charter rights within the meaning of s. 24(2) of the
Charter.
In deciding whether or not this secondary evidence should be
excluded,
the trial judge again applied the test from Collins. He noted that it
was conceded that the first
-46-
group of factors concerning the fairness of the trial was not
relevant.
As to the second group of factors concerning the seriousness of the
Charter breach, the trial judge reaffirmed his earlier finding that
the violation was a serious one.
The trial judge then turned to the final set of factors relating to
the disrepute to the administration of justice that would arise from
exclusion of the evidence. The trial judge distinguished between the
theft counts and the breach of trust counts. He held that the gravamen
of the offences was the use of Church members to infiltrate various
organizations to obtain copies of documents containing information
that
might help the Church. The most reprehensible aspect of the conduct
was
as the infiltration of the law enforcement agencies as represented by
the breach of trust counts. The theft charges were relatively minor
involving the temporary removal of pieces of paper of a value not
exceeding $200.
The trial judge concluded that the exclusion of the secondary
evidence in connection with the less serious offences of theft under
$200 would not bring the administration of justice into disrepute.
However, to exclude the secondary evidence on the more serious charges
of breach of trust would bring the administration of justice into
disrepute in the eyes of a reasonable person, dispassionate and fully
apprised of the circumstances of the case.
-47-
C. Analysis
An appellate court should not interfere with the decision of a
trial judge respecting the application of s. 24(2) of the Charter
unless the trial judge made an unreasonable finding of fact or a legal
error in applying that provision. See R. v. Grant, [1993] 3 S.C.R.
223. In our view, there is no basis for interfering with the trial
judge's conclusions concerning the admissibility of the secondary
evidence. Accordingly, it is only necessary to deal briefly with the
submissions of the appellants.
1. Causation
Before turning to those arguments, some brief components are
necessary with respect to the threshold issue of whether the secondary
evidence was obtained in a manner that infringed the appellants
Charter
rights. This case was tried before the decision of the Supreme Court
of Canada in R. v. Goldhart [1996] 2 S.C.R. 463. In Goldhart,
reference
is made to the decision of the trial judge in this case. Sopinka J.
held that, to the extent that Southey J. held that a causal connection
between the breach and the evidence was sufficient to trigger the
provisions of s. 24(2), this was an error. Instead, the court is
required to examine the whole of the relationship between the breach
and the evidence. Thus, the court must consider no: only whether there
is a causal connection, but the strength of the connection between
the impugned evidence and the breach. The court must also consider
-48-
whether there existed a temporal link. On the other hand, Sopinka J.
noted that in this case the trial judge had found that illegally
seized documents incriminated the witnesses and were a key factor
in the decisions of the witnesses to come forward and testify for
the Crown.
In our view, Sopinka J.'s reasons in Goldhart imply that it was
open to the trial judge in this case to find that the strength of
the causal connection between the Charter breach and the obtaining
of the secondary evidence was such that the evidence was procured
in a manner that infringed the appellants' Charter rights.
That being said, the fact that the connection between the secondary
evidence and the violation was somewhat more remote than the obtaining
of the primary evidence was a factor to be taken into account in
applying the Collins factors. See R. v. Strachan [1988] 2 S.C.R.
980 per Dickson C.J.C. at p. 1006. I turn now to whether the impugned
secondary evidence should be excluded.
2. Fairness of the Trial
With respect to the first set of Collins factors, we agree with the
trial judge that the admission of this evidence would not affect the
fairness of the trial. This secondary evidence did not have the
quality
of self-incrimination and did not emanate from the
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appellants. To paraphrase the dissenting reasons of Brooke J.A.,
adopted by Sopinka J. in Goldhart at p. 496, this testimony was the
product of the minds of the witnesses themselves and could be known
only if and when they chose to disclose it. It was not enough that
the testimony might not have been obtained but for the illegal search.
As held by Doherty J.A. in R. v. Belnavis (1996), 107 C.C.C. (3d) 195
at 222-3 (Ont. C.A.) and Cory J. in R. v. Stillman, a judgment of the
Supreme Court of Canada, released March 20, 1997 at paras. 72-119,
before admission of this type of evidence will affect the fairness of
the trial, there must be some element of involvement or participation
of the accused in the obtaining of the evidence. That element is
absent in this case. The mere use by the authorities or documents,
created by the accused before the violation, to obtain further
evidence
is not the kind of compelled participation that will render this
after-acquired evidence "conscriptive evidence" so as to affect the
fairness of the trial.
3. Seriousness of the Charter Violation
With respect to the second set of factors, in our view, the trial
judge properly characterized the seriousness of the violation. Ms.
Edwardh argues that the trial judge erred in considering the fact that
the search was completed in a short period of time as a mitigating
factor. This submission concerns the following aspect of the trial
judge's reasons:
The loss of the documents in the illegal seizure caused substantial
hardship to the Church. On the other hand, the police were acting
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in the execution of a valid search warrant the officers had tried
to comply with para. 16 of the search warrant by satisfying
themselves that they seized only documents relating directly to
the offenses alleged in the information the search would have
tested must longer. Officers would have been present in the
Church's premises for a greater period of time, which would have
increased the disruption to the activities of the Church.
The trial judge's comments that had the police complied with
paragraph 16 of the warrant they would have been on the premises for
a greater period of time were not intended to diminish the seriousness
of the violation. He was merely pointing out that this was a factor
to be taken into account in considering the seriousness of the
intrusion into the privacy interests of the Church. There is no
question that had the police undertaken a detailed review of the
documents at the premises, they would have been a constant and
probably oppressive presence for many more days. That was a factor
to be considered.
In Baron v. Canada, [1993] 1 S.C.R. 416 at 451 Sopinka J., for the
court, quoted with approval from the judgment of Hartt J. in R. v.
Burnett. [1985] 2 C.T.C. 227 (Ont. H.C.) as follows:
Where the alleged misconduct is of a complex nature in which funds
are allegedly funnelled through a number of interrelated companies
with a view to hiding their disposition, it seems to me that the
number of documents that may afford evidence of such a violation
may well be very great indeed. In such a case, an entire class
of documents may in fact be necessary to trace the
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transactions. _Granted, many documents in a file may not, in the
final analysis, be relevant to any tax violation. However, it may
be impossible to preclude their relevance without a detailed
examination of all the documents seized._ [Emphasis added]
Hartt J.'s comments were made in the course of considering a
submission
similar to the one made in this case that the overseizure of documents
rendered the search and seizure unreasonable. He had earlier made the
following observation at p. 238:
_A search and seizure of the kind authorized here would take
months to complete if each document had to be examined individually.
To interpret the legislation in the way urged could well lead
to the serious disruption of private and business premises,
could involve inordinate strain on public resources, and might
well found a legitimate complaint that the manner in which a
search is executed is oppressive._ To insist that in all cases
the determination of relevance be based upon the examination of
the documents at the time of the search is similarly impractical.
It seems to me that the search must be as detailed as is necessary
to determine whether the documents may afford evidence of a
violation and that the detail required will depend on how broad
the standards of relevance properly are. [Emphasis added.]
This was a factor to be taken into account in considering the
seriousness of the violation. The trial judge found, in effect, that
the police made no attempt to comply with he provisions of paragraph
16 of the warrant arrant. But this conduct had to be balanced against
the consequences to the appellant of a more detailed review on the
premises. The fact that the police were acting upon a valid search
warrant was also a proper factor to take into
-52-
account. See R. v. Strachan, [1988] 25 C.R. 980; R. v. Goncalves,
[1993]
2 S.C.R. 3; R. v. Plant, [1993] 3 S.C.R. 281 at 300. Counsel for the
respondent also point out that one of the most serious aspects of the
violation, the unauthorized seizure of the pre-clear folders, is
mitigated by the fact that these were immediately sealed in accordance
with a court order.
4. The Administration of Justice
Finally, we agree with the trial judge's view concerning the third
set of factors. In considering the effect of exclusion, the entire
course of events had to be considered. This was not a case where
admitting the evidence would have the effect of condoning unacceptable
conduct by the police. The trial judge had already determined that the
primary evidence should be excluded and that the secondary evidence
should be excluded on the less serious theft charges. It was clearly
open to him to find that the balance shifted in favour of admission
in considering the serious breach of trust charges. The trial judge
was required to balance the long-term consequences on the
administration
of justice of regularly admitting this kind of evidence in the light
of how it was obtained, against the consequences of excluding it. See
R. v. Greffe, [1990] 1 S.C.R. 755 at 797.
In this case, the trial judge found a strong causal link between the
Charter breach and the obtaining of the evidence of the Crown
witnesses.
However, it was also of some
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significance that the evidence obtained from illegal seizure was not
the only factor motivating the witnesses to come forward. The trial
judge mentioned the "domino effect", which was also relevant on the
second branch of the s. 24(2) test. As the trial judge pointed out,
the significance of the seized documents diminished once it became
known that one or two of the other ex-Scientologists were cooperating
with the police. The witnesses were also strongly motivated to
cooperate with the authorities because of their own experience
within Scientology. They had seen that when wrongdoing was detected,
the Church would distance itself from the wrongdoers and, in fact,
offer up the wrongdoers to the authorities and provide no assistance
to them, even though they had been acting on behalf of the Church, or
at least the Guardian's Office. These factors could all properly be
taken into account to strengthen the conclusion of the trial judge
with respect to the third set of Collins factors that exclusion of
the evidence on the breach of trust charges would tend to bring the
administration of justice into disrepute.
The seriousness of the offenses was also a proper factor to
consider.
In Collins, the Supreme Court held that if the admission of the
evidence
would not affect the fairness of the trial and that without the
evidence
serious charges would be dismissed, the seriousness of the offences
favours admission. We do not agree with counsel for the appellants
when she submits that these were not serious offences. I will
deal with this aspect of the case further
-54-
when considering the sentence appeal. It is only necessary to point
out here that these offences had the potential to seriously compromise
the administration of justice in this province. As the trial judge
pointed out, the most reprehensible aspect of the conduct was the
attempt to impair the effectiveness of the targeted law enforcement
agencies, including the various police forces and the Ministry of
the Attorney General. The fact that the repeated efforts of the
appellant to obtain confidential information were largely unsuccessful
did not mitigate the serious nature of the breach of trust offences.
The distinction the trial judge drew between the theft counts and the
breach of trust counts was a reasonable one and we see no basis for
interfering with his conclusion.
I now turn to the principal grounds of appeal.
IX. ELIGIBILITY FOR SERVICE ON A JURY
A. Introduction
In a pre-trial motion before the trial judge, the appellants
challenged the constitutional validity of the jury selection scheme
in the provincial Juries Act, R.S.O. 1990, c.J.3. The focus of the
challenge was the exclusion of non-citizens from the jury pool.
The appellants also challenged the validity of excluding certain
persons by reason of their occupation or the occupation of their
spouse. The trial judge dismissed the motion and the
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jury was selected in accordance with the existing legislative
scheme. The appellants argue that the trial judge erred and,
accordingly, that the jury was not properly constituted. We called
on the Crown to respond to these submissions.
B. Selection of a Jury in Ontario
Although selection of a jury in a criminal case is a matter of
criminal procedure, Parliament has relied upon the provincial
legislation to assemble the panel from which the petit jury will be
selected. Thus, s. 626 of the Criminal Code provides that a "person
who is qualified as a juror according to, and summoned as a juror
in accordance with, the laws of a province" is qualified to serve as
a juror. The Code also requires that the provinces meet certain
standards in their jury selection schemes. For example, under s.
626(2), "no person may be disqualified, exempted or excused from
serving as a juror in criminal proceedings on the grounds of his or
her sex." Pursuant to s. 638(1)(d), the prosecutor or the accused may
challenge a juror for cause on the basis that the juror is an
"alien".1
For the purposes of this appeal, it is only necessary to provide
a cursory outline of the process by which the jury is selected. The
first step in the process is performed by the
-----
1 The term "alien" would seem to be an anachronism. In the
Immigration Act, R.S.C. 1952, c. 145, "alien" is defined as a
person who is not a British subject. See: Bureau v. The King
(1931), 51 Que. K.B.207. The immigration Act, R.S.C. 1985,
c. I-2 makes no reference to "alien".
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Director of Assessment for Ministry of Revenue. Through the of a
computerized database, the Director selects the persons who will
receive jury notices. Those persons in the database who are Canadian
citizens, resident in the municipality and will be a minimum of 18
years of age when summoned, are identified and put into a separate
computer file. The number of persons requested by the sheriff are
randomly drawn from this separate database and mailed jury notices.
For the year 1992, the Sheriff for the Municipality of Metropolitan
Toronto asked the Director of Assessment to send out 30,000 jury
notices. The notice instructs the potential juror to answer a
questionnaire designed to identify persons who would not be eligible
for jury duty in accordance with the provincial legislation. One such
question is whether the potential juror is a Canadian citizen.
Approximately 22,000 individuals responded to the jury notice. From
this group, the sheriff was able to prepare a list of 16,500 qualified
persons. This becomes the jury roll from which jury panels are drawn
for the year.
Panels of eligible jurors are selected from the jury roll to serve
for two weeks. The members of the panel are selected at random. The
petit jury will be selected from this panel in accordance with the
procedure in Part XX of the Criminal Code. Section 629 of the Criminal
Code permits the accused or the prosecutor to challenge the jury panel
as a whole
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(challenge to the array of the panel) on the basis of partiality,
fraud or wilful misconduct on the part of the sheriff or other
official by whom the panel was returned. In this case, the appellants
challenged the array of the panel pursuant to s. 629. They did not
allege any personal state of mind or conduct on the part of the
official who returned the panel, but argued that the system prescribed
by the provincial statute was defective.
Where there is no challenge to the panel or that challenge is
dismissed, the selection of the petit jury commences. Names are
randomly selected from the panel. As those persons come forward they
may be excused by the trial judge under s. 632 because they have
an interest in the proceedings or directed to stand by for reasons
of personal hardship by the trial judge under s. 633. The potential
juror may then be challenged for cause in accordance with s. 638 or
challenged peremptorily under s. 634. In this case, all of the
potential jurors were challenged for cause under s. 638(1)(b) on
the basis that they were not indifferent between the Queen and the
accused. The challenge for cause mainly concerned pre-trial publicity
about the Church of Scientology. At the end of this process, the
petit jury of 12 jurors had been selected to try the case.
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C. The Challenge at Trial to the Array
The challenge at trial to the panel was based on certain exclusions
in the Juries Act. First, the appellants argued that it is a violation
of their ss. 7, 11, and 15 Charter rights to exclude non-citizens
pursuant to s. 2(b) of the Act. Second, they argued that s. 3 of
the Act is similarly unconstitutional in that it excludes medical
practitioners, veterinary surgeons and coroners; and the spouses of
judges, lawyers, and law enforcement personnel. The relevant portions
of ss. 2 and 3 that produce these exclusions are as follows:
2. Subject to sections 3 and 4, every person who,
(a) resides in Ontario;
(b) _is a Canadian citizen;_ and
(c) in the year preceding the year for which the jury is
selected had attained the age of eighteen years or more,
is eligible and liable to serve as a juror on juries in the Ontario
Court (General Division) and in all courts of civil or criminal
jurisdiction in the county in which he or she resides. [Emphasis
added]
3.-(1) The following persons are ineligible to serve as jurors:
1. Every member of the Privy Council of Canada or the
Executive Council of Ontario.
2. Every member of the Senate, the House of Commons of
Canada or the Assembly.
3. Every judge and every justice of the peace.
4. Every barrister and solicitor and every student-at-law.
5. _Every legally qualified medical practitioner and veterinary
surgeon who is actively engaged in practice and every
coroner._
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6. Every person engaged in the enforcement of law including,
without restriction the generality of the foregoing,
sheriffs, wardens of any penitentiary, superintendents,
jailers or keepers of prisons, correctional institutions
or lockups, sheriff's officers, police officers, and
officers of a court of justice.
7. _Any person of the opposite sex to whom a person mentioned
in paragraph 3, 4 or 6 is married or with whom that person
is living in a conjugal relationship outside marriage._
[Emphasis added]
Following the trial in this matter, s. 3(1)7 was repealed by the
Statute Law Amendment Act (Government Management and Services), 1994,
S.O. 1994, c.27, s. 48(1).
The core of the appellants' argument was that non-citizens represent
a significant percentage of people, approximately 14% of the
population
of Metropolitan Toronto, and are unfairly excluded from the
opportunity
to serve on juries. The appellants called evidence as to the manner
in which the panels are selected in Ontario. They also called expert
evidence concerning the function of the jury and expert evidence
concerning immigration.
The appellants argued that this exclusion is irrational since many,
if not most, of this group can competently perform jury service. The
appellants pointed to s. 27 of the Charter, which requires that the
Charter be interpreted in a manner "consistent with the preservation
and enhancement of the multicultural heritage of Canadians." They
relied upon the evidence of their expert that the non-citizen
community
is "disenfranchised" because it
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is deprived of the opportunity for jury service. It was also his
evidence that giving non-citizens the opportunity to serve on a jury
would "increase the opportunity for minority opinions to be expressed
in the fact-finding process."
The evidence adduced by the appellants shows that of the 1.7 million
residents of Metropolitan Toronto over the age of 18, approximately
1.5 million are Canadian citizens. Almost one-half of the 1.7 million
residents were not born in Canada and most, close to three-quarters
of this group, have become Canadian citizens. Thus, on its face, the
pool of potential citizens from which the panel would be selected is
a highly diverse group in terms of ethnic and cultural background. I
will make further reference to the statistical and other evidence as
it
becomes necessary in considering the arguments raised by the
appellants.
In his reasons for judgment, the trial judge applied Andrews v. Law
Society of British Columbia, [1989] 1 S.C.R. 143, concluding that
non-citizens were a discrete minority and that exclusion of such a
large group of persons from jury duty was a breach of the appellants'
s. 11 right under the Charter to a representative jury. The trial
judge
held, however, that this breach constituted a reasonable limit under
s. 1 of the Charter. With respect to the exemptions in s. 3 of the
Juries Act such as physicians and spouses of lawyers, the trial judge
found that excluding these groups did not violate the guarantee to a
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representative jury because their exclusion would not materially
reduce the representativeness of the jury panels.
D. The Positions of the Parties on Appeal
The appellants argue that exclusion of non-citizens under s. 2 of
the Juries Act and exclusion of other persons by reason of their
occupation or marital status under s. 3 of the Act, violate ss
15.7.11(d) and 11(f) of the Charter. They argue that they have a
right under ss. 7 and 11 to a properly constituted jury. They argue
that a properly constituted jury is one selected from a panel which
has in turn been selected in a manner that does not violate any of
the provisions of the Charter and especially s. 15. Alternatively,
they argue that they have a constitutional right to a jury selected
from a representative pool and, as found by the trial judge, exclusion
of large groups of potential jurors from the jury roll on the basis
of irrelevant characteristics such as immigration status violates this
constitutional right. They also argue that in the case of Jacqueline
Matz who is a non-citizen, the exclusion of non-citizens violates her
rights under s. 15 of the Charter.
The respondent submits that the appellants are attempting to attack
otherwise valid provincial legislation because it infringes the s. 15
equality or other rights of potential jurors. The respondent argues
that these appellants have no standing to argue the violation
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of s. 15 rights of potential jurors. The respondent concedes that the
appellants, or at least the individual appellant Matz, have a personal
right under s. 11 of the Charter to a representative jury roll.
However,
the respondent argues that the Juries Act provisions guarantee the
constitutionally required representativeness.
E. The Interveners
Two interveners were granted leave to make submissions on this
issue. In support of the appeal is Mr. Laws, a black Canadian citizen
who was convicted of conspiring to commit offences under the
Immigration Act, R.S.C. 1985, c.I-2. At his trial, he challenged
the constitutionality of s. 2 of the Juries Act on the basis that
prohibiting non-citizens from jury duty effectively reduces the
representation of his peers on the jury panel. His application was
dismissed at trial: R. v. Laws (1994), 19 C.R.R. (2d) 269. Mr. Laws'
appeal is pending in this court and the Juries Act issue forms one
of the grounds of appeal. His intervener status in this case was
granted on the ground that while the "Scientology evidence is general
as to implications of citizenship, the Laws' evidence is specific to
the black population of Metro Toronto": R. v. Church of Scientology
of Toronto (1996), 92 O.A.C. 313. The Attorney General of Canada,
the respondent in the Laws appeal, intervened in this appeal to
support the constitutionality of the Juries Act.
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Mr. Laws submits that any requirement of citizenship has a
differential impact on black residents of Toronto in that a greater
proportion of black residents would be excluded from jury duty than
would the rest of the population. His position was supported with
evidence including the statistics that 34.1% of the black residents
of Toronto are non-citizens, while only 14.4% of the non-black
residents are non-citizens. The Attorney General of Canada argued
that the Juries Act meets the standard of representativeness required
by ss. 7.11(d) and 11(f) of the Charter. Both interveners argue that
the exclusion of non-citizens as it effects the _racial_
representation
on a jury was not raised in the Scientology case, and should be left
for the Laws appeal.
F. Analysis
To analyze the issues raised in this appeal and the Crown's
response,
it is critically important to focus on the source and nature of the
rights asserted. As I will explain below, it is my view that the
appellants seek to rely upon the s. 15 Charter rights of other persons
and cannot do so. In the context of this case, the validity, of the
jury selection process must be measured by the rights guaranteed to
accused persons under s. 11 of the Charter. However, because it is
central to the appellants' argument, I will deal first with the s. 15
claim. I will then consider the subordinate arguments based upon s. 7
of the Charter, the Criminal Code and the common law. Finally, I will
deal with s. 11 of the Charter.
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In my view, the appeal raises following issues:
Exclusion of Non-citizens
Section 15 of the Charter
1. Do the appellants as accused have standing to challenge the
validity of the Juries Act exclusions based on R. v. Big M Drug
Mart Ltd., [1985] 1 S.C.R. 295 or on any other basis?
2. Does the appellant Matz, as a non-citizen, have standing to
challenge the validity of the Juries Act exclusion of
non-citizens?
Section 7 of the Charter, the Common Law and the Criminal Code
3. Do the principles of fundamental justice as guaranteed by s. 7
of the Charter include a right to a jury selected without
discrimination?
4. Does the common law or the Criminal Code give the appellants a
right to a jury selected without discrimination?
Section 11 of the Charter
5. Do the Juries Act provisions infringe the appellants' right to
a representative jury pool as guaranteed by s. 11 of the Charter?
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Exclusions Based on Occupation and Marital Status
6. Are the exclusions based upon occupation or marital status in
s. 3 of the Juries Act invalid?
Section 15 of the Charter
1. Standing to Make a s. 15 Challenge
Unless the appellants had standing to challenge these provisions,
the trial judge was bound to give effect to them, as are we. The
jurisdiction of the trial judge and of this court to deal with the
appellants' equality claim under s. 15 and provide an appropriate
remedy lies either in s. 24 of the Charter or s. 52 of the
Constitution
Act, 1982. Section 24 gives a remedy only to a person whose rights
have been infringed. See R. v. Belnavis (1996), 107 C.C.C. (3d) 195
at 207 (Ont. C.A.). Section 24 does not give these accused a remedy
based on an alleged infringement of the equality rights of
non-citizens
who may have been excluded from the jury pool.
Section 52 is broader and gives a court the right to hold
legislation
to be of no force and effect where that legislation infringes the
Charter even if the accused's own rights or freedoms have not been
infringed. Still, litigants do not have unlimited resort to s. 52 and
the courts have refused to deal with the validity of a statutory
provision where the party
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seeking to challenge the legislation does not have standing. Most
recently, see Ontario Home Builders' Association v. York Region Board
of Education (1996), 137 D.L.R. (4th) 449 at 471-72 (S.C.C.) per
Iacobucci J. Also see Benner v. Canada (Secretary of State), a
judgment of the Supreme Court of Canada, released February 27, 1997,
where Iacobucci J. held, at para. 78, that a party "cannot generally
rely upon the violation of a third party's Charter rights".
The appellants' principal claim to s. 15 standing to raise the
validity of the Juries Act provisions is based on the doctrine from
Big M Drug Mart. In that case, Big M Drug Mart Ltd. was charged
with violating the Lord's Day Act, R.S.C. 1970, c.L-13 by selling
products from one of its retail stores on Sunday. It sought to defend
the charge on the basis that the Act violated the guarantee to freedom
of religion under s. 2(a) of the Charter. The Crown argued that the
accused had no standing to challenge the validity of the law since,
as a corporation, it could have no religion. Dickson C.J.C. rejected
that argument and explained at p. 313 the basis upon which the accused
corporation could challenge the legislation:
_Any accused, whether corporate or individual, may defend a
criminal charge by arguing that the law under which the charge
is brought is constitutionally invalid._ Big M is urging that
the law under which it has been charged is inconsistent with
s. 2(a) of the Charter and by reason of s. 52 of the Constitution
Act, 1982, it is of no force or effect.
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The argument that the respondent, by reason of being a
corporation, is incapable of holding religious belief and
therefore incapable of claiming rights under s. 2(a) of the
Charter, confuses the nature of this appeal. A law which
itself infringes religious freedom is, by that reason alone,
inconsistent with s. 2(a) of the Charter and it matters not
whether the accused is a Christian, Jew, Muslim, Hindu,
Buddhist, atheist, agnostic or whether an individual or a
corporation. _It is the nature of the law, not the status of
the accused, that is in issue._ [Emphasis added]
The doctrine in Big M Drug Mart gives an accused the right to defend
a criminal charge by arguing that the _law under which the accused is
charged_ is unconstitutional. That is not the defence raised here.
In my view, Big M Drug Mart does not stand for the proposition that
an accused may assert the personal rights of other actors in the
proceedings, except where the possible infringement of those rights
affects the accused's rights. In this case, the appellants must show
that the manner in which the jury panel was selected infringed
their rights as accused persons. Their rights as accused flow
primarily from s. 11(d) and (f) as persons "charged with an offence",
and I will deal with those rights below.
The courts have given the Big M Drug Mart doctrine a generous
interpretation, permitting accused to challenge the law under which
they are charged provided that some accused's rights would be
infringed by prosecution for that offence. In R. v. Morgentaler,
[1988] 1 S.C.R 30, the accused physicians were entitled to challenge
the constitutionality of former s. 251 (the abortion provision) of
the Criminal Code, on the basis that the section
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under which they were charged limited women's rights under s. 7.
However, as I read the various judgments in the Supreme Court, it
was the possibility of criminal prosecution of women seeking an
abortion under s. 251 that was the foundation for the s. 7 argument.
For example, Dickson C.J.C. (Lamer J. concurring) expressed the
violation of s. 7 in the following terms at pp. 56-7:
Section 251 clearly interferes with a woman's bodily integrity
in both a physical and emotional sense. Forcing a woman, _by
threat of criminal sanction_, to carry a foetus to term unless
she meets certain criteria unrelated to her own priorities and
aspirations, is a profound interference with a woman's body and
thus a violation of security of the person. [Emphasis added.]
The reasons of Beetz J. (Estey J. concurring) and Wilson J. are to a
similar effect, at pp. 81 and 161 respectively.
In my view, the result in Morgentaler does not support the
appellants' claim to standing, nor does R. v. Wholesale Travel Group
Inc., [1991] 3 S.C.R 154 or R. v. M. (C.) (1995), 98 C.C.C. (3d) 481
(Ont. C.A.). The common thread in all these cases is that because of
their status as accused, the accused persons have been accorded
standing to challenge the provisions under which they were charged,
provided that the rights of some potential accused would be infringed.
We were referred to no case that gave an accused standing to assert
s. 15 rights of some other persons in the justice system.2
-----
2 Although not relied upon by the appellants, I have considered
whether R. v. S. (RJ) (1995), 96 C.C.C. (3d) 1 (S.C.C.) could
support the position of the appellants. The
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Further, I see no policy basis to extend Big M Drug Mart to permit
the appellants to assert the s. 15 rights of potential jurors. The
Supreme Court of Canada has repeatedly affirmed the personal nature
of s. 15 rights. In Andrews v. Law Society of British Columbia at p.
163, McIntyre J. pointed out that s. 15(1) was not a general guarantee
of equality; "it does not provide for equality between individuals
or groups within society in a general or abstract sense". In R. v.
Swain, [1991] 1 S.C.R. 933 at p. 992, Lamer C.J.C. also noted the
personal nature of s. 15 rights. He pointed out that the inquiry will
"focus largely on whether the law has drawn a distinction
(intentionally
or otherwise) between the _claimant_ and others based on personal
characteristics". Based on this interpretation of s. 15, I can see no
basis to grant standing to the appellants to argue the equality rights
of a highly diverse group of
-----
accused R.J.S. was charged with break, enter and theft. The
principal
Crown witness was to be his alleged accomplice J.P.M. At the opening
of the trial J.P.M., who was separately charged with the same
offence,
brought a motion to quash the subpoena on the basis that it
infringed
his Charter right to remain silent. This motion was successful and
the accused was acquitted. A Crown appeal to this court was allowed.
On further appeal to the Supreme Court, the Crown raised a standing
issue. Iacobucci J. writing for the majority of the Court held that
it was necessary to distinguish two different cases. In the first
case, the privilege claim of the witness has been improperly
rejected. It may be that no party would have a right to appeal the
verdict on that basis. Iacobucci J. left that issue open. However,
where the claim has been improperly allowed, it was open to the
Crown to appeal on the basis that the evidence was improperly
rejected and it was open to the accused to respond by arguing in
support of a privilege that was affirmed. The accused's further
appeal to the Supreme Court was but an extension of that response.
That is not the case here. The appellants' own equality rights
are not at stake and they cannot acquire standing to make the
initial application by attempting to rely upon the standing that
some potential juror might have had to start the process.
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which they cannot personally be members, namely non-citizen potential
jurors. The Big M Drug Mart doctrine does not afford the appellants
standing to argue that the equality rights of potential jurors have
been infringed.
Similar principles apply where an accused seeks to challenge the
procedural provisions under which he or she is tried. Thus, in R. v.
Bain, [1992] 1 S.C.R. 91, the accused was able to challenge the
validity of the stand aside provisions (former s. 634) of the Criminal
Code, even though there was no evidence that the process had been
abused in his case. In fact, the trial judge made his ruling before
any jurors had been selected. The accused was, however, asserting a
personal right under s. 11(d) of the Charter to be tried by an
impartial
tribunal. He was claiming that by reason of the stand aside
provisions,
the selection process operated unfairly towards him and in favour of
the Crown. This is confirmed by the judgment of Cory J., for the
majority, at p. 103:
The section is so heavily weighed in favour of the Crown that
viewed objectively it must give that legal fictional paragon,
the reasonable person, fully apprised of the manner in which a
jury may be selected, an apprehension of bias. This must be so
since the jury, _as a result of the selection process, would
appear to be favourable to the Crown._ [Emphasis added.]
The rights asserted by the appellants in this case under s. 15 are
entirely different. It is a claim, not that the jury roll by reason
of exclusion of non-citizens deprived them of a trial by
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an impartial tribunal, but that non-citizens were deprived of _their_
rights to participate on a jury. As in Bain, the appellants' rights
are located in s. 11, sot s. 15.
2. Section 15 Rights of the Appellant Matz
The corporate appellant concedes that it has no direct claim to
rights under s. 15 of the Charter. The appellant Matz, however,
attempts to assert a direct s. 15 violation based on her own status
as a non-citizen. To the extent that this is merely a recasting of
the argument based on Big M Drug Mart, it must fail. Matz has no
right as an accused to assert a claim for the equality rights of
potential jurors.
In the event I am wrong about Matz's lack of standing to argue
s. 15, in my view, Matz's equality rights as a non-citizen have not
been infringed. As I understand it, Matz also asserts a s. 15
violation on the theory that, as a member of a discrete and insular
minority, the disqualification of persons like her from jury service
violates her own right to be treated without discrimination as
mandated by s. 15. I accept, of course, that the Supreme Court in
Andrews has held that non-citizens who are permanent residents of
Canada fall into an analogous category to those enumerated in s. 15.
That, however, is not the end of the inquiry. Section 15(1) provides
as follows:
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Every individual is _equal before and under the law and has the
right to the equal protection and equal benefit of the law_ without
discrimination and, in particular, without discrimination based
on race, national or ethnic origin, colour, religion, sex, age
or mental or physical disability. [Emphasis added.]
In Eaton v. Brant County Board of Education (1996), 142 D.L.R.
(4th) 385, Sopinka J., speaking for the court on this issue, pointed
out that while there was a division within the court in Miron v.
Trudel [1995] 2 S.C.R. 418 and Egan v. Canada, [1995] 2 S.C.R. 513
as to some of the principles relating to the application of s. 15 of
the Charter, there was common ground on some points. In particular,
he noted at para. 62 that there is general agreement that "before a
violation of s. 15 can be found, _the claimant_ must establish that
the impugned provision creates a distinction on a prohibited or
analogous ground which withholds an advantage or benefit from, or
imposes a disadvantage or burden on, _the claimant_." [Emphasis
added.] The appellant Matz, the claimant, cannot meet that threshold
requirement.
Matz was in no way subjected to disadvantageous treatment by reason
of any distinction on the analogous ground of her immigration status.
She received equal benefit and equal protection of the law without
discrimination due to ha immigration status. The impugned provisions
of the Juries Act did not withhold any advantage or benefit from, nor
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impose a disadvantage or burden on her.3 She was not, and could not,
be summoned as a potential juror in her own case and s. 15 rights of
hers were violated by the provisions.
Matz makes a related claim that by reason of the Juries Act
exclusions she was denied the benefit of the views and experiences
of other non-citizens. This, however, is a claim based on lack of
representativeness of the array. It is a claim she can make as an
accused and her right, if any, to this degree of representativeness
is located not in s. 15 but in s. 11 as a person "charged with an
offence". I deal with that claim below.
3. Section 7 of the Charter
The appellants also seek to rely on s. 7 of the Charter which
guarantees everyone the right to life, liberty and the security of
the person, and the right not to be deprived thereof except in
accordance with the principles of fundamental justice. Even though,
according to
-----
3 It is unnecessary to decide whether the intervener Laws has
made out that kind of impact. That issue should be left to the court
hearing his appeal. Both Laws and the federal Crown, the respondent
in the Laws appeal, urged us to avoid deciding that issue in this
appeal. The Attorney General of Canada submitted that "the issue
of race as a quality of representativeness, not raised by the
appellants in this appeal, should be left for the Court in the Laws
appeal." I agree. The issue is highly complex and the relationship
between ss. 11 and 15 in the context should be developed on the
basis of a proper record and by parties with standing to raise the
issue. See comments of C. Petersen, "Institutionalized Racism: The
Need for Reform of the Criminal Jury Selection Process" (1993),
38 McGill L.J. 147, especially at 163-65 the author looks at the
question of jury representativeness in the context of the s. 15
jurisprudence from the point of view of the victim and the potential
juror, as well as the accused.
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Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R 927, the
appellant corporation cannot invoke s. 7, the appellant Matz as a
person whose liberty interests are at stake clearly can rely on the
fundamental justice guarantee in s. 7. However, the fundamental
justice
guarantee in s. 7 adds nothing to her claim. In the context of this
case, s. 7 does not offer greater protection than the specific
guarantee
under s. 11(d) and (f). See R. v. Genereux, [1992] 1 S.C.R. 259 at 310
per Lamer C.J.C. The potential impairment of the appellant Matz's
liberty interest arises from her status as an accused, not by reason
of her immigration status. Her right to fundamental justice must be
seen within that context.
The claim based on s. 7 of the Charter is an attempt, indirectly,
to acquire standing to argue the equality rights of potential jurors.
The appellant Matz attempts to avoid the standing requirements in
s. 15 by arguing that an accused has a right under s. 7 as a matter
of fundamental justice to a properly constituted jury. She defines
a properly constituted jury as one selected in a manner that does
not violate any of the provisions of the Charter, in particular s. 15.
The appellant was entitled to a properly constituted jury, but as the
Juries Act and the Criminal Code stood at the time, this panel was
selected according to law and the jury was properly constituted.
If the appellant had no standing to challenge these provisions on
the basis of s. 15, the trial court and this court were bound to give
them effect
-75-
Matz also seeks to rely upon this court's decision in Philippines
(Republic) v. Pacificador (1993), 16 C.R.R. (2d) 299. In that case,
the appellant, who was subject to proceedings under the Extradition
Act, R.S.C. 1985, c. E-21, argued that his rights under s. 7 of the
Charter were violated. Had he been subject to surrender under the
Fugitive Offenders Act, R.S.C. 1985, c.F-32, the demanding state
would have had to meet a higher standard of proof. The appellant
could not gain direct access to s. 15 of the Charter because there was
no basis for arguing that the different tests in the two Acts were
discriminators within the meaning of s. 15 as explained in cases
such as Andrews.
The appellant in Pacificador argued, however, that it is a principle
of fundamental justice that all persons must be treated equally before
the law, except to the extent that distinctions in their treatment
can be justified by some reasonable or rational legislative policy.
Doherty J.A. accepted that the equality rights created by s. 15 are
principles of fundamental justice, but held at p. 13 that this did
not "alter the required analysis or yield a different concept of
equality." Since the different tests for committal under the two Acts
do not result in discriminatory treatment within the meaning of s. 15,
"the appellant's argument that _his_ equality rights as enshrined in
s. 7 of the Charter are infringed must fail." [Emphasis added.]
-76-
Pacificador is of no assistance to the appellant in this case. Even
if s. 7 of the Charter incorporates the equality rights under s. 15,
it
only incorporates the equality rights of the person whose liberty
is at stake. It is that person who is entitled to proceedings in
accordance with the principles of fundamental justice. The liberty
of non-citizens who may be affected by the alleged discriminatory
nature of the Juries Act was not at stake in this prosecution.
4. The Right under the Common Law and the Criminal Code to a Properly
Constituted Jury
The appellants argue that at common law and under the Criminal Code,
they are entitled to trial by a properly constituted jury. I doubt
that reference to the common law adds anything to this argument since
the detailed provisions of the Criminal Code and the provisions of
the Juries Act have probably largely supplanted the common law
respecting jury selection. What has been said above in relation to
s. 7 of the Charter applies with equal force to the argument based
upon the common law and the Criminal Code, and only a few additional
comments are necessary.
The appellants place particular reliance upon the decision of this
court in R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.). In that
case, the trial judge did not comply with the statutory requirements
for selecting the jury. After the jury panel had been
-77-
exhausted, rather than proceed under former s. 571 of the Criminal
Code by ordering a tales, the trial judge purported to increase the
size of the original panel. In the result, those potential jurors
who had been stood aside by the prosecutor under former s. 563 were
never recalled. The accused's appeal from conviction was allowed
and a new trial ordered. The following passage at p. 37 summarizes
the reasons of the court and is relied upon by the appellants here:
[The trial judge's] duty is to follow the statute. He must not
enter upon a course of action that prevents resorting to the
"stand-asides" when that result is called for under the Code.
_He must follow the (constitutionally valid) statute._
....
In the result, because _the process actually adopted by the
trial judge was not authorized by law,_ and deprived the
appellants of a statutory right conferred on them by s. 571 of
the Criminal Code, the appellants were deprived of a trial by
a jury lawfully constituted. This error in itself requires a
new trial. [Emphasis added.]
The appellants take a broad view of the emphasized portions and
argue that the process followed in this case to summon the jury panel
was not authorized by law since that process discriminated against
non-citizens and others. Put shortly, they argue that although the
trial judge was bound to follow a constitutionally valid statute,
equally he was bound not to follow a constitutionally infirm statute.
-78-
While this proposition is probably true in the abstract, it does
not apply to this case. The impugned legislation was validity enacted
and until set aside by a competent court, the sheriff and the other
officials charged with the responsibility of summoning the jury panel
were bound to follow the legislative scheme. Where, as here, the
procedure mandated by the legislation is followed, the jury has been
lawfully constituted. The appellants' lack of standing to make the
equality arguments prevents them from arguing that the statutes are
constitutionally infirm on that basis.
5. Section 11 of the Charter
The appellants concede that they are not entitled to a petit jury
that is "representative". They argue, however, that the selection
process cannot be structured so as to ensure that the jury will not
be representative. The appellants do not distinguish, in terms of
representativeness, between the selection of the jury roll, which
consists of a pool of some 22,000 persons who may be summoned for
jury duty during the year, and the selection of the jury panel of
one to two hundred people summoned for jury duty that week and from
which the appellants' petit jury was selected. Since the exclusion of
non-citizens and others operates at the level of the jury roll, I will
assume that the appellants claim a right to a representative roll.
-79-
The appellants argue that the deliberate exclusion of certain
groups,
especially non-citizens, results in an unrepresentative roll. Thus,
selection of the panel in the manner mandated by the Juries Act
ensures that the petit jury will not be representative. The appellants
submit that the right to a representative pool is implied by the
guarantees in s. 11(d) and (f) of the Charter. Those provisions are
as follows:
11. Any person charged with an offence has the right
....
(d) to be presumed innocent until proven guilty according to law
in a fair and public hearing by an independent and impartial
tribunal;
....
(f) except in the case of an offence under military law tried before
a military tribunal, to the benefit of trial by jury where the
maximum punishment for the offence is imprisonment for five
years or a more severe punishment ....
The Crown submits that the corporate appellant has no standing to
rely upon s. 11 of the Charter. It is argued that the right asserted
depends upon s. 11(f) and a corporation has no right to trial by jury.
See P.P.G. Industries (Canada) v. Canada (Attorney General) (1983). 3
C.C.C. (3d) 97 (B.C.C.A.). It is unnecessary to resolve this difficult
question since the appellant Matz is charged with offences carrying
a maximum punishment of five years, and thus clearly had the right
to a jury under s. 11(f). Moreover, I am not convinced that the right
to a representative jury roll is wholly subsumed within s. 11(f). The
right to a representative jury roll is also a means of ensuring
impartiality. Exclusion of identifiable
-80-
groups from the jury panel on the basis, for example, of race or
religion casts doubt on the integrity of the process and risks the
creation of the appearance of bias, thereby possibly violating an
accused's right under s. 11(d) to trial by an independent and
impartial
tribunal.
No question of standing otherwise arises. In other words, the right
asserted by the appellants to a representative jury roll is a right
guaranteed to them by s. 11 as accused persons. The fact that the
appellant Matz happens to be a non-citizen is beside the point. She
could raise the question of representativeness even if she were a
citizen. Equally, her right to a representative jury roll is not a
right to a roll that shares any distinctive characteristics that she
may possess. It is the quality of representativeness in the jury roll
that is at stake, not the particular make-up of any of the panels
randomly selected from that roll.
In R. v. Sherratt, [1991] 1 S.C.R. 509, L'Heureux-Dube J. discussed
the important rode of the jury in criminal litigation. She pointed out
that by reason of its collective decision-making, the jury is an
excellent fact finder. In a passage of particular interest in this
case at p. 523, she held that the jury "due to its representative
character" acts as the conscience of the community. The jury can act
"as the final bulwark against oppressive laws or their enforcement;
it provides a means whereby the public increases its
-81-
knowledge the of the criminal justice system and it increases,
through the involvement of the public, societal trust in the system
as a whole."
The justification for the representative nature of the jury is not
simply to assure that the case is tried by an impartial tribunal. The
representative character of the jury also furthers important societal
or community interests by instilling confidence in the criminal
justice
system and acting as a check against oppression. The accused and the
community have an interest in maintaining the representative character
of the jury system. In Sherratt, L'Heureux-Dube J. made several other
comments concerning the nature of the representative character of the
jury. Thus, she stated at p. 524 that the modern jury was not meant
to be a tool of either the Crown or the defence but rather "was
envisioned as a representative cross-section of society, honestly
and fairly chosen".
In Sherratt, L'Heureux-Dube J. found that the selection of a jury
in a criminal case engages two related Charter rights. First, the
guarantee in s. 11(f) to the benefit of trial by jury implies that
the jury will be impartial and representative. Second, s. 11(d) of
the Charter explicitly guarantees the accused the right to be
tried by an impartial tribunal. The selection of the jury panel
in accordance with provincial legislation, incorporated through
s. 626 of the Criminal Code, is the primary vehicle for ensuring
representativeness. The in-
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court procedure set out in Part XX of the Criminal Code is the
mechanism for ensuring that the petit jury is impartial. This case
involves only the question of representativeness. The appellants do
not attack the impartiality of this petit jury, which was selected
following a challenge for cause of each juror in accordance with
the Criminal Code.
The content of the right to a representative jury as that right
may be guaranteed by s. 11 is a matter of first impression in this
court. The respondent submits, however, that the issue has been
determined by the Supreme Court in Sherratt. The respondent relies
upon the following passages from the reasons of L'Heureux-Dube J.
at pp. 524-26:
Increasingly, however, ever, many countries have since repealed
property, sex and race qualifications for jurors and have
legislated other expansions in the number of *citizens eligible
for jury duty* ... These later developments only serve to
underscore the previously articulated rationales for the
existence of the jury.
....
The perceived importance of the jury, and the Charter right to
jury trial is meaningless without some guarantee that it will
perform its duties impartially *and represent, as far as is
possible and appropriate in the circumstances, the larger
community*. Indeed, without the two characteristics of
impartiality and representativeness, a jury would be unable to
perform properly many of the functions that make its existence
desirable in the first place. Provincial legislation guarantees
representativeness at least in the initial array. *The random
selection process, coupled with the sources from which the
selection is made, ensures the representativeness of Canadian
criminal juries: see the provincial Jury Acts. Thus, little
if any objection can be made*
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*regarding this crucial characteristic of juries. Schulman
and Meyers, ["Jury Selection", in Studies on the Jury, Law
Reform Commission of Canada (1979)] make this clear at p.408*
of they discussion:
Jury qualification *requirements in Canadian provinces
are considerably different than those in the United States
or England. The American Bar Association Standards for trial*
by jury, as recommended by the Advisory Committee on the
Criminal Trial, say that - "The names of those persons who
may be called for jury service should be selected at random
from sources which will furnish a representative cross-section
of the community." _Canadian laws by and large have long met
the standard_. [Underlining in original. Bold added.]
The respondent points out that L'Heureux-Dube J. referred in these
passages to "citizens" eligible for jury duty and stated that the
random selection process coupled with the sources from which the
selection is made as provided in the provincial Jury Acts "ensures"
the representativeness of Canadian criminal juries. The appellants
submit, however, that the approval of the selection process is
qualified in that L'Heureux-Dube J. also said that "little, if any
objection" can be taken to the present selection process. They also
point out that in the Schulman and Meyers article referred to by
L'Heureux-Dube J., the authors later suggest that consideration be
given to permitting landed immigrants to serve on juries service if
they would otherwise qualify for jury service.
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Although there is considerable merit the Crown's position, it is
unnecessary to decide whether this aspect of the representativeness
question has been finally determined by the Supreme Court in Sherratt
since, in any event, the appellants have failed to show that their
rights under s. 11 have been violated.
The right to a representative jury roll is not absolute in the sense
that the accused is entitled to a roll representative of all of the
many
groups that make up Canadian society. This level of representativeness
would be impossible to obtain. There are a number of practical
barriers
inherent in the selection process that make complete
representativeness
impossible. The roll is selected from a discrete geographical district
which itself may or may not be representative of the broader Canadian
society.
Further, the critical characteristic of impartiality in the petit
jury is ensured, in part, by the fact that the roll and the panel are
produced through a random selection process. To require the sheriff
to assemble a fully representative roll or panel would run counter to
the random selection process. The sheriff would need to add potential
jurors to the roll or the panel based upon perceived characteristics
required for representativeness. The selection process would become
much more intrusive since the sheriff in order to carry out the task
of selecting a representative roll would require information from
potential jurors as to their race,
-85-
religion, country of origin and other characteristics considered
essential to achieve representativeness. The point of this is not
to demonstrate that a panel or roll cannot or should not be
representative, but that the right to a representative panel or
roll is an inherently qualified one. There cannot be an absolute
right to a representative panel or roll.
What is required is a process that provides a platform for the
selection of a competent and impartial petit jury, ensures confidence
in the jury's verdict, and contributes to the community's support
for the criminal justice system. To use the words of Madam Justice
L'Heureux-Dube in Sherratt at p. 524, what is required is a
"representative cross-section of society, honestly and fairly
chosen." In my view, there is no characteristic that persons bring
to the fact-finding process of the jury _based solely on their
immigration status. _ Canadian citizens are of all races,
nationalities,
ethnic origin, colour, religion, sex, age and ability. Immigration
status is simply not a relevant characteristic when regard is had
to the rationale underlying the right to a representative pool. A
jury pool selected from Canadian citizens represents the larger
community for the purposes of trial by jury.
It may be, however, that exclusion of certain segments of society
from jury service would infringe the requirement of a representative
cross-section. This issue has been considered in the United States
in a number of different contexts. In Taylor v. Louisiana 95
-86-
S.Ct. 692 (1975), Mr. Justice White, delivering the judgment of the
court, heft that it was fundamental to the jury trial guarantee in
the Sixth Amendment to the United States Constitution that the jury
be selected from a fair cross-section of society. He saw the jury
as a "prophylactic vehicle" to "guard against the exercise of
arbitrary power - to make available the common sense judgment of
the community" (at p. 698). This prophylactic vehicle is not provided
if the jury pool is "made up of only special segments of the populace
or if large, distinctive groups are excluded from the pool."
The exact definition of "distinctive group" has proved elusive.
As one court noted, the Supreme Court has not "burdened the term
'distinctive group' with a precise definition": Silagy v. Peters,
905 F.2d 986 at 1010 (7th Cir. 1990). The Crown urged us to adopt
the formulation used by Mr. Justice Rehnquist in Lockhart v. McCree,
106 S.Ct. 1758 (1986). Mr. Justice Rehnquist summarized the previous
decisions of the court that had found a violation of the fair-cross-
section requirement as follows at p. 1766:
Because these groups were excluded for reasons completely
unrelated to the ability of members of the group to serve as jurors
in a particular case, the exclusion raised at least the possibility
that the composition of juries would be arbitrarily skewed in such
a way as to deny criminal defendants the benefit of the common-sense
judgment of the community. In addition, the exclusion from jury
service of large groups of individuals not on the basis of their
inability to serve as jurors, _but on the basis of some immutable
characteristic such as race, gender, or ethnic background,
undeniably gave rise to an "appearance of unfairness."_ Finally,
-87-
such exclusion improperly members of these often historically
disadvantaged groups of their rights as citizens to serve on
juries in criminal cases. [Emphasis added.]
I hesitate to attempt to articulate an all-inclusive test of
distinctiveness such as "some immutable characteristic". In my view,
it is preferable to deal with each by case having regard to the
purposes of the representativeness requirement as set out by
L'Heureux-Dube J. in Sherratt. The essential quality that the
representativeness requirement brings to the jury function is the
possibility of different perspectives from a diverse group of persons.
The representativeness requirement seeks to avoid the risk that
persons
with these different perspectives, and who are otherwise available,
will be systematically excluded from the jury roll.
Exclusion of non-citizens does not infringe the representativeness
or fair cross-section requirement in this sense. There was no evidence
that non-citizens as a group share any common thread or basic
similarity in attitude, ideas or experience that would not be brought
to the jury process by citizens. The expert evidence led by the
appellants was somewhat misleading in this respect. From my review
of the evidence, it seems that the expert tended to use
non-citizenship
opinion as a proxy for minority opinion. The evidence, however,
simply does not bear out the inference that exclusion of non-citizens
disproportionately excludes minorities from the jury. As pointed out
above, almost one-half of the 1.7 million residents of Metropolitan
Toronto over the age of 18 were not born in Canada, but most, close
to three-quarters, have become Canadian citizens.
-88-
In the context of jury representativeness, citizenship, like
residency in the province, is not an improper basis for defining the
parameters of the jury roll. As La Forest J. wrote in Andrews v.
Law Society of British Columbia at p. 196, "[C]itizenship is a very
special status that not only incorporates rights and duties but serves
a highly important symbolic function as a badge identifying people as
members of the Canadian polity." All free and democratic societies
have established a unique status like citizenship to which attach
certain rights, privileges and obligations closely related to the
concept of self-government. It will be recalled that in speaking of
the importance of the jury function, L'Heureux-Dube J. held in
Sherratt
that the jury can act as the conscience of the community and as the
final bulwark against oppressive laws or their enforcement. I see no
reason why this important aspect of self-government should not be
reserved for citizens, where, as here, exclusion of non-citizens does
not affect the representativeness of the jury roll.
The intervener Laws argues that immigration status is a proxy for
other potentially relevant characteristics, especially colour. See
Ivan Head, "The Stranger in our Midst: A Sketch of the Legal Status
of the Alien in Canada", Can. Y.B. Int'l L. (1964), at 107. Thus, he
argues that exclusion of non-citizens undermines the
representativeness
of the jury especially as regards colour.
-89-
The evidence presented here, however, fails to demonstrate the
point. As noted above, citizens, at least in Metropolitan Toronto,
are of all races, colours and national origin. According to the
evidence adduced in the Laws case itself, including non-citizens
in the panel would increase the likelihood of selecting a black
person for the pool by only .9%. In my view, this cannot affect
the representative nature of the array. The deliberate exclusion of
distinctive groups based on characteristics such as race, sex, colour,
religion or national origin might well infringe the requirement of
a jury selected from a fair cross-section of the community. Exclusion
of certain persons based upon their immigration status is simply not
of that quality.
In my opinion, Mr. Laws is making an equality argument. He argues
that the exclusion of non-citizens has the effect of excluding a
"disproportionate number of his peers" from the panel.4 I make no
comment on whether or not this is a valid argument in the Laws
appeal. It simply does not arise in this case.
The appellants argue, as held by the trial judge, that non-citizens
must be considered distinctive for the purpose of the jury guarantee
in s. 11(f) because the Supreme Court of Canada
-----
4 His point appears to be this. While excluding non-citizens only
reduces the probability of a black person being on any particular
jury panel by less than 1%, since the number of blacks on any
particular panel is already small as compared to whites, any
increase in the likelihood of there being a black on the panel
is a benefit to the black accused. Equally, any decrease in the
probability of a black being on the panel is a disadvantage to a
black accused. These arguments are best left to the Laws appeal
where it will be for the court hearing that case to determine
whether Laws' equality rights have been violated even if there is
no violation of his s. 11 rights.
-90-
held in Andrews v. Law Society of British Columbia that non-citizens
fall into an analogous category for the purposes of s. 15 of the
Charter.
In my view, the trial judge erred on this point. Sections 11 and
15 have different purposes and guarantee different rights to different
persons. In Andrews, Wilson J. explained at p. 152 the rationale for
including non-citizens in s. 15: "Relative to citizens, non-citizens
are a group lacking in political power and as such vulnerable to
having _their_ interests overlooked and _their_ rights to equal
concern and respect violated." The focus of s. 15 is on the claimant,
the person who is vulnerable to discrimination from the majority. For
the reasons that Wilson J. and the other members of the court gave
in Andrews, non-citizens require the protection of s. 15. The rights
protected by s. 11 are entirely different and require an entirely
different analysis. They focus on the need to protect the accused
from abuse by the state. In the context of s. 11, the right to a jury
trial carries a right to a petit jury selected from a jury roll that
is reasonably representative of the community having been selected
from a fair cross-section of the community. Exclusion of persons
based solely on their immigration status does not detract from the
protection afforded an accused by s. 11 of the Charter.
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As the appellants have failed to demonstrate a violation of s. 11(d)
or (f), it is unnecessary to consider whether the exclusion of
non-citizens would constitute a reasonable limit under s. 1.
6. Exclusions Based on Occupation and Marital Status
The other exclusions challenged by the appellants may be dealt
with briefly. The appellants have failed to demonstrate that the
exclusion of physicians, veterinarians and coroners produces an
unrepresentative jury array. These exclusions are three of several
exclusions in s. 3(1) of the Juries Act, as it read at the time of
the trial, based on occupation.
Physicians, veterinarians and coroners cannot fairly be said to
represent a distinctive group. The opinion of the defence expert was
that their exclusion results in the exclusion from the array of
some of the better educated persons in the society. Even if level
of education were a distinctive characteristic, and in my view
it is not, the exclusion of a few thousand persons from a pool of
over one million persons is trivial and in no way undermines the
legitimacy of the jury array. As White J. said in Duren v. Missouri,
99 S.Ct. 664 at 671 (1979), [quoting in part from Taylor v. Louisiana,
95 S.Ct. 692 (1975)], "[I]t is unlikely that reasonable exemptions,
such as those based on special hardship, incapacity or community
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needs 'would pose substantial threats that the remaining pool of
jurors would not be representative of a community'.
The appellants also complain of the exclusion of the spouses of
judges, lawyers and persons engaged in the enforcement of law. The
appellants argue that exclusion of this group is discrimination on
the basis of marital status. To the extent that the appellants seek
to invoke the rights of the persons allegedly discriminated against,
the earlier comments on standing apply. Moreover, this provision has
now been repealed by the Legislature.
The appellants also argue that the exclusion of spouses had the
effect of excluding a distinctive group, namely women. They argue
that since the majority of persons in the named occupations are men,
exclusion of their spouses tends to disproportionately exclude women.
However, as with the argument made by Mr. Laws regarding blacks, the
appellants have failed to show that exclusion of certain spouses
impaired the representative nature of the jury array vis a vis gender.
The number of women who would actually have been excluded under s.
3(1)7
was never established in the evidence, but could represent only a very
small number of women who would otherwise be eligible to be selected
in the array, probability something less than 15,000 out of a
population of over one-half million. It cannot
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be said that this exclusion unfairly depleted the pool of women so
as to the cross-section requirement.
The jury panel was properly constituted in accordance with valid
provincial and federal legislation. The appellants have not shown
that any of their nights as guaranteed by the Charter or under the
Criminal Code or at common law were violated by the manner in which
the array was assembled. This ground of appeal fails.
X. CORPORATE CRIMINAL LIABILITY
A. Introduction
The appellant Church of Scientology of Toronto makes several
submissions respecting corporate criminal liability. First, it
argues that the identification doctrine as set out in Canadian Dredge
& Dock Co., Ltd. v. The Queen, [1985] 1 S.C.R. 662 does not apply to
a non-profit corporation established for religious purposes. Second,
it argues that even if the identification doctrine applies, that
doctrine has been further explained by the Supreme Court of Canada,
subsequent to the trial in this case, in The Rhone v. The Peter A.B.
Widener, [1993] 1 S.C.R. 497. The appellant submits that the Crown
adduced no evidence that would meet the test laid down in The Rhone.
Alternatively, it submits that the trial judge did not adequately
direct the jury with respect to corporate criminal liability as
now explained in The
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Rhone. The appellant also argues the trial judge misdirected the
jury with respect to the outer limits of the identification doctrine.
Finally, the appellant argues that the trial judge erred in placing
before the jury the doctrine of wilful blindness as a new theory of
liability. We called on the Crown to respond to these submissions.
B. Application of the Identification Doctrine to a Non-Profit
Religious
Corporation
1. The Facts
The issue of the application of the identification doctrine to the
prosecution of a non-profit religious corporation was raised before
the trial judge in a pre-trial motion to quash the committal for
trial and for an order under s. 24(1) of the Charter staying the
proceedings for violation of freedom of religion in s. 2(a) of the
Charter. This application was expanded to include allegations of
violations of the freedom of association in s. 2(d), the right to
life, liberty and security of the person in s. 7 and the presumption
of innocence in s. 11(d). The application was argued on the basis of
the transcript from the preliminary inquiry and viva voce evidence
from religious and sociological expert witnesses called by the
corporate appellant. The evidence adduced at trial did not differ
materially from the evidence at the preliminary inquiry.
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The appellant Church of Scientology of Toronto was incorporated as
a corporation without share capital on September 8, 1967, under Part
III of the Ontario Corporations Act (now R.S.O. 1990, c. C.38). Its
objects at the time were as follows:
(i) to accept and adopt the aims, purposes, principles and creed
of the Church of Scientology of California;
(ii) to propagate the religious faith known as Scientology by
that man's best evidence of God is the God he finds within
himself and trusting with enduring faith that the Author of
the Universe intended life to thrive within it; and
(iii) to print and publish articles, books, lessons, periodicals,
radio and or television script or other media for the
purposes of dissemination of the religious faith, Scientology,
to the membership and or the public.
The Corporations Act allows for a corporation without share capital
to have an unlimited number of members of the corporation. The Church
of Scientology of Toronto, however, had only three members. The
parishioners were not members, although they did pay tithes to the
Church. The Act also requires a corporation to have a board of
directors to conduct the affairs of the corporation. The evidence
indicated, however, that the board of directors was a mere
figurehead and that the real executive authority lay in the Guardian's
Office and the FLAG Bureau. During the relevant time period, the
Assistant Guardian Toronto was shown on the corporate filings
as a director of the corporation. A corporation under Part III of
the Act is to be carried on without the purpose of gain for its
members and any profits are to be used in promoting the objects of
the corporation. As I understand the
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theory of the appellant, the corporation held the property in trust
for the parishioners, and the board of directors or the members acted
as trustees.
The religious and sociological expert witnesses for the corporate
appellant testified about the effect of the criminal prosecution.
They noted that they were unaware of any previous criminal prosecution
of a religious institution or corporation in the "free world". They
emphasized the concern that prosecution of a religious body implicates
the parishioners in the wrongdoing since the public is unable to
distinguish between the church as an institution and its individual
adherents. Further, the public is unable to distinguish between the
Church of Scientology of Toronto as a corporate entity and the Church
of Scientology and its faith in general. In effect then, prosecution
of the corporate entity stigmatizes the religion and its parishioners.
The witnesses also testified that the prosecution of a religious body
impairs the capacity of the religious community to participate in the
institutional life of a society. The criminal charges suggest an
element of hypocrisy within the Church in the sense that while the
adherents teach one thing, they act another way and thus are not
worthy of being followed or supported financially. The witnesses
further noted that the negative effects of prosecution on newer
religions such as Scientology are more profound than on established
religions.
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2. Ruling of the Trial Judge
The trial judge held that the fact that the corporate appellant is
a religious organization does not render it immune from prosecution.
In this regard, he relied on the decision of this court in Re Church
of Scientology et al. and the Queen (No. 6) (1987), 31 C.C.C. (3d)
449. The trial judge was satisfied that the identification doctrine
of corporate criminal liability applies to a non-profit corporation
with religious objects. He held that the prosecution of the appellant
did not involve any limit on the freedoms of religion or association
in s. 2 of the Charter because the illegal acts of the members of the
Guardian's Office were not condoned by the Church doctrine. He also
concluded that the prosecution did not violate the s. 7 right to life,
liberty or security of the person of any human being, and that the
s. 11(d) presumption of innocence was not violated.
3. The Issue
Although the evidence on the application before the trial judge
would appear to raise the broad issue of the propriety of _any_
criminal prosecution of a religious corporation the appellant does
not seem to argue that a religious corporation can never be
prosecuted criminally. Rather, it makes a narrower argument. The
appellant argues that prosecution _through the identification
doctrine_ violates ss. 2(a), 2(d), 7 and 11(d) of the Charter. It
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submits that a religious corporation only be convicted if the board
of directors authorized the illegal activity or failed to
exercise due diligence to prevent it.
4. Analysis
For the reasons that follow, I would hold that the identification
doctrine as explained in Canadian Dredge & Dock applies to non-profit
corporations established for religious purposes. Since s. 7 of the
Charter does not apply to corporations, it is unnecessary to determine
whether the doctrine infringes s. 7. I am satisfied that the doctrine
does not violate s. 11(d) of the Charter. Assuming without deciding
that the identification doctrine infringes the freedoms of religion
and association as guaranteed by ss. 2(a) and 2(d) of the Charter
respectively, that infringement constitutes a reasonable limit
in a free and democratic society under s. 1. In the result, it is
unnecessary to decide whether the appellant has standing to rely on
s. 2 of the Charter.
(a) The Identification Doctrine
The theoretical impediment to attributing criminal liability to a
corporation, an artificial entity, is the requirement for most crimes
that the accused be proved to have mens rea. This obstacle had been
overcome at common law by attributing to the corporation the acts and
the state of mind of certain of its agents. In Canadian Dredge & Dock,
Estey J., for
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the Supreme Court of Canada, explained the basis for criminal
liability to a corporate entity through the "identification doctrine",
and set out the elements and certain limits of liability. The
essential holdings in the case can be briefly summarized for the
purposes of this appeal.
Estey J.'s discussion of the identification doctrine assumed that
a corporation would be liable under the doctrine for the criminal
acts of its board of directors. He held at p. 682 that the corporation
will also be liable for the criminal acts of the employee who is its
"alter ego" or "directing mind", based on the notion that the identity
of the directing mind and the identity of the corporation coincide.
He also considered some of the circumstances in which the corporation
would not be liable for the acts of the directing mind. The acts of
the directing mind must be performed within the scope of his or her
authority or, put another way, when the directing mind is "carrying
out his assigned function in the corporation" (at p. 685). Even then,
Estey J. stipulated at p. 713 that the corporation will not be
liable where the directing mind was acting totally in fraud of the
corporation and where the act was intended to and does result in
benefit exclusively to the directing mind. As will be seen below when
considering The Rhone, one of the important issues left to the jury
in this case was whether the persons alleged to be directing minds
of the corporate appellant were carrying out a function assigned to
them by the corporation.
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Mr. Ruby, on behalf of the corporate appellant, does not take issue
with the aspect of the identification doctrine that imposes liability
on the corporation for the acts of the board of directors. He argues,
however, that the broader aspects of the doctrine should not be
applied to non-profit corporations and particularly those with
religious objects.
(b) Does the Identification Doctrine Apply to Non-Profit Corporations?
The identification doctrine as explained in Canadian Dredge & Dock
represents a compromise between immunity for corporations and the
imposition of vicarious liability on the corporation for any of the
acts of its agents. As Estey J. explained, the increasing importance
of corporations in society, and particularly as they became the
principal vehicle of commerce in the community, made it imperative
that they be subject to the criminal law in some fashion.
Mr. Ruby submits that the rationale for the identification doctrine
reveals that it was never intended to apply to non-profit corporations
without share capital. He points out that the initial motivation for
extending criminal liability focused on the fact that the corporation
had become the principal vehicle of commerce. Non-profit corporations
are not involved in commerce in this sense. They do not have
shareholders, and any profits are to
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be used to further the objects of the corporation rather than to
enrich the members. Mr. Ruby relies particularly on the following
passage from Canadian Dredge & Dock at p. 694:
The corporation which set the directing mind in position to
do the wrong will suffer an economic penalty. _While it is true
that this penalty will feed through to the stockholders, who
may well be totally innocent as in the case of a large public
company, it may be seen as a risk or cost associated with the
privilege of operating through the corporate vehicle._ In the
case of personal corporations, the imposition of a criminal
penalty on the corporation may be an additional penalty imposed
upon the 'personal' corporate stockholder but such a result
would be an acceptable part of the sentencing process as it
simply reflects the economic identification, as well as the
legal identification, present in such a corporation. In the
case of a public corporation, the economic identification factor
is absent, and in a theoretical sense there is an additional
penalty for the same act which must be justified in some way
other than that suggested above. This is the inevitable result
of the pragmatic adoption of the attribution of the acts of its
delegates to the delegating corporation in order to bring that
corporation within the system of criminal justice. Whether
the route taken be the doctrine of respondeat superior or
identification, the result is the same. _The corporation
in reality has three elements: the legal entity, the personal
shareholder (a natural person directly or indirectly), and
the employee. Once the process is set in motion, the criminal
penalty will extend directly or indirectly to all three which
is quite unlike the situation of a natural proprietor where
only two of these elements are present. All this, in my view,
while not entirely logical, is a tolerable result for a
community where reality dictates corporate criminal
accountability in certain circumstances. [Emphasis added.]
In my view, the identification doctrine is fully applicable to
non-profit corporations without share capital. The rationale for the
imposition of criminal liability on
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corporations is not that they make profit or are engaged in commerce,
or even that they have shareholders. Rather, since corporations
occupy such a central role in society, it would be unacceptable to
have them operating outside the criminal law.
As the excerpt quoted above indicates, Estey J. recognized that the
economic penalty may feed through to shareholders who, in a large
public corporation, are totally innocent. This was nevertheless a
"tolerable result," and a risk or cost associated with the privilege
of operating through the corporate vehicle. The same may be said for
the non-profit corporation. The economic penalty may be borne by the
members or, as in this case, the parishioners who may be totally
innocent. This is, however, a risk or cost associated with the
privilege of operating through the corporate vehicle. In this
respect, I note that the members enjoy the same special protection
from liability as shareholders of a business corporation. Section 122
of the Corporations Act provides as follows:
122. A member shall not, as such, be held answerable or
responsible for any act, default, obligation or liability of
the corporation or for any engagement, claim, payment, loss,
injury, transaction, matter or thing relating to or connected
with the corporation.
Although he did not refer directly to non-profit corporations, Estey
J. clearly contemplated that such corporations must be brought within
the fold of criminal liability, and that the identification doctrine
was the appropriate basis for doing so. After pointing out that
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criminal liability for a human actor is personal and he or she is not
responsible for the acts of an agent. Estey J. said at p. 692:
On the other hand, the corporate vehicle now occupies such a
large portion of the industrial, commercial _and sociological
sectors_ that amenability of the corporation to our criminal
law is as essential in the case of the corporation as in the
case of the natural person. [Emphasis added.]
The evidence in this case bears out the important role of the
non-profit corporation in modern society. The latest figures
available at the time of trial indicated that there were over 25,000
corporations without share capital incorporated in Ontario; that
there were approximately 65,000 registered charities in Canada,
and almost 30,000 of these carry out religious activities; and that
Canadian taxpayers donated almost $3 billion to charities. To leave
these organization outside the purview of the criminal law would be
intolerable. Some of the most important activities undertaken in
society are performed under the umbrella of the corporate vehicle.
I can see no rational basis for adopting a different test for
criminal liability in the case of non-profit corporations solely
because they do not have shareholders or because any profits are
used to promote the objects of the corporation rather than to enrich
the shareholders personally. The need for regulation of the conduct
of the corporation through the criminal law is the same.
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Accordingly, subject to the arguments under the Charter, which were
not available in Canadian Dredge & Dock, a pre-Charter case, I am
satisfied that the identification doctrine applies to this corporate
appellant.
(c) Sections 7 and 11(d) of the Charter
The appellant argues that imposing liability on a corporation
through the identification doctrine infringes ss. 7 and 11(d) of the
Charter. The argument, as I understand it, is that even though Estey
J. avoided reliance on vicarious liability in his description of the
identification doctrine, in reality, the doctrine has the potential
to find a corporation criminally liable in the absence of what Mr.
Ruby terms "corporate fault". Mr. Ruby seems to argue that corporate
fault can only be based on the actions and mens rea of the board of
directors. This would require proof that the board of directors either
authorized the criminal activity or failed to exercise due diligence
to prevent the wrongdoing by the directing minds other than the board
of directors.
The first problem with this argument is to locate it within the
proper constitutional provision. To the extent that the argument
depends on s. 7 of the Charter, the appellant can have no relief. It
is clear that s. 7 does not apply to corporations. In Irwin Toy
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Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, Dickson
C.J.C., for the majority, summarized at p. 1004 the holding that
s. 7 does not apply to corporations:
That is, read as a whole, it appears to us that this section
was intended to confer protection on a singularity human level. A
plain, common sense reading of the phrase "Everyone has the right
to life, liberty and security of the person" serves to underline
the human element involved; only human beings can enjoy these
rights. _"Everyone" then, must be read in light of the rest
of the section and defined to exclude corporations and other
artificial entities incapable of enjoying life, liberty or
security of the person, and include only human beings. In this
regard, the case of R. v. Big M Drug Ltd, [[1985] 1 S.C.R. 295]
is of no application. There are no penal proceedings pending in
the case at hand, so the principle articulated in Big M Drug Mart
is not involved._ [Emphasis added.]
Mr. Ruby attempts to avoid the effect of the decision in Irwin Toy by
arguing that the imposition of liability upon this appellant affects
the security interests of the members and parishioners of the Church.
In my view, Irwin Toy also forecloses any reliance by a corporation
on the s. 7 rights of other actors. Dickson C.J.C. wrote the following
at p. 1002:
In order to put forward a s. 7 argument in a case of this kind
where the officers of the corporation are not named as parties to
the proceedings, the corporation would have to urge that its own
life, liberty or security of the person was being deprived in a
manner not in accordance with the principles of fundamental justice.
In our opinion, a corporation cannot avail itself of the protection
offered by s. 7 of the Charter.
Mr. Ruby also argues that the appellant is entitled to rely on the
caveat in Irwin Toy that, based on Big M Drug Mart, a corporate
accused can, in penal proceedings, assert the alleged
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violation of an individual accused's s. 7 right. However, unlike the
law at issue in Big M Drug Mart, an individual could never be charged
pursuant to the identification doctrine. Since that doctrine applies
only to corporations, the logic of Big M Drug Mart does not apply.
See comments of Lamer C.J.C. in R. v. Wholesale Travel Group Inc.,
[1991] 3 S.C.R. 154 at 181-82. Since the corporate appellant cannot
invoke s. 7, it is unnecessary to determine whether the identification
doctrine infringes s. 7.
The appellant's inability to rely on s. 7 of the Charter also
forecloses any argument based on an alleged infringement of s. 11(d)
of the Charter. As Lamer C.J.C. explained in R. v. Vaillancourt,
[1987]
2 S.C.R. 636 at 654-55, the presumption of innocence in s. 11(d)
requires that before an accused can be convicted, the trier of fact
must be satisfied beyond a reasonable doubt of the existence of all
of the essential elements of the offence. These essential elements
include not only those set out in the relevant statute, but also
those required as a matter of fundamental justice by s. 7 of the
Charter. The common law doctrine imposes liability upon the
corporation
for the unlawful acts of its directing minds, whether or not the board
of directors authorized or was even aware of the acts, and whether or
not the board exercised due diligence to prevent the commission of
those acts. Since s. 7 of the Charter does not apply to corporate
liability, no additional elements are implied. The corporate
appellant's rights under s. 11(d) are therefore not infringed.
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(d) Section 2(a) of the Charter
The corporate appellant argues that the application of the
identification doctrine to a non-profit religious corporation
infringes the freedom of religion guarantee in s. 2(a) of the
Charter. Mr. Bernstein raises a standing argument here, as be did
in relation to the issue of eligibility for service on a jury. He
submits that a corporation cannot have a religion and the appellant
therefore has no right to invoke s. 2(a) of the Charter. He points
out that Big M Drug Mart, itself a freedom of religion case, does
not apply since by definition the identification doctrine applies
only to corporations.
I see a vast difference between an accused attempting to invoke the
rights of potential jurors who have no connection to the accused, and
a corporation with religious objects invoking the religious freedom
of its parishioners. Although it has a corporate form, the corporation
embodies to some extent the beliefs of its human parishioners. The
identification between the corporation and the parishioners is so
close that I would be reluctant to find that the corporation could
not rely on the religious freedom of its parishioners.
In R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, four
retailers argued that the provincial Sunday closing legislation under
which they had been charged violated
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2(a) of the Charter. In dealing with the accused's submission that
even if the purpose of the legislation was not to infringe freedom
of religion it had that effect, both Dickson C.J.C. and Beetz J.
appeared to assume that the accused corporations could rely on the
s. 2(a) rights of their individual customers. Dickson C.J.C. noted
that the legislation abridged the religious freedom of consumers who
observe Saturday rather than Sunday as a day of rest. Beetz J. also
dealt with the impact on consumers, but found that the evidence was
so tenuous as to be insufficient to establish even a prima facie
infringement of s. 2(a).
The question of standing was not addressed explicitly in Edwards
Books. Nevertheless, there is the implicit suggestion in the reasons
that in a proper case, an accused can rely on the religious freedom
of other persons who are directly affected by the prosecution of the
accused. Similar reasoning may be applied to the Crown's assertion
that the appellant has no standing to assert the freedom of
association of the members or parishioners of the Church. Because
of the uncertainty as to the appellant's standing under ss. 2(a)
and 2(d), I would prefer to deal with these arguments on their
merits.
In Edwards Books at pp. 758-59, Chief Justice Dickson held that
indirect coercion by the state is "comprehended within the evils from
which s. 2(a) may afford
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protection." He then explained the limits of the protection from
indirect burdens afforded by s. 2(a):
Section 2(a) does not require the legislatures to eliminate
every minuscule state-imposed cost associated with the practice
of religion. _Otherwise the Charter would offer protection from
innocuous secular legislation such as a taxation act that imposed
a modest sales tax extending to all products, including those
used in the course of religious worship._ In my opinion, it is
unnecessary to turn to s. 1 in order to justify legislation of
that sort. ... The Constitution shelters individuals and groups
only to the extent that religious beliefs or conduct might
reasonably or actually be threatened. For a state-imposed cost
or burden to be proscribed by s. 2(a) it must be capable of
interfering with religious belief or practice. In short,
_legislative or administrative action which increases the cost
of practising or otherwise manifesting religious beliefs is not
prohibited if the burden is trivial or insubstantial:_ see, on
this point, R. v. Jones, [1986] 2 S.C.R. 284, per Wilson J. at
p. 314. [Emphasis added.]
The appellants argument, in essence, is that prosecution of this
religious corporation through the identification doctrine constitutes
a non-trivial burden on the practice of the Scientology religion by
its members and parishioners. Those persons are forced to bear the
cost of the defence and to suffer the stigmatization of prosecution.
If the corporation is convicted, the members and parishioners must
raise funds to pay the fine or risk loss of the Church property,
including their place of worship. The burden of defending a serious
criminal charge is far more severe than the modest sales tax example
used by Dickson C.J.C. in Edward Books.
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The Crown responds that this issue has been determined against the
appellant by the decision of this court in Re Church of Scientology
et al. and the Queen (No. 6). The issues in that case concerned the
validity and execution of search warrants at the Church premises in
Toronto. The material seized during the searches played some part in
the subsequent prosecution. This court held that although it is not
the function of the courts to pass judgment on the validity of any
particular religious belief, it would not be appropriate for the
court to rule that the allegations against the appellant Scientology
were not justiciable. The court made some broad comments about the
application of the criminal law to religious practices at pp. 469-70:
In our opinion, the criminal law of Canada does operate to
limit religious practices even when based upon sincerely or
genuinely held religious beliefs. Freedom of religious practice
or conduct is not absolute, and is subject to laws of general
application established to protect public safety, order, health,
morals, or the fundamental rights and freedoms of others. Freedom
of religion has not prevented Canadian courts in the past from
restricting sincerely held religious beliefs or practices in
cases of compelling public interest. Even in the case of United
States v. Ballard [(1944), 322 U.S. 78], the count at p. 87,
adopted the statement in Davis v. Beason (1890), 133 U.S. 333 at
p. 342:
With man's relations to his Maker and the obligations he
may think they impose, and the manner in which an expression
shall be made by him of his belief on those subjects, no
interference can be permitted, *provided always the laws of
society designed to secure its peace and prosperity and the
morals of its people are not interfered with.*
[Emphasis added.]
The appellant Scientology relies on R. v. Big M Drug Mart Ltd.
supra. to support its position on this point. _However, with
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great respect to those advocating the contrary, we do not believe
that Big M Drug mart assists a proponent of the view that the
actions of a church are non-justiciable. We do not take Chief
Justice Dickson's reference to religious "practices" to mean that
"practices" that are otherwise illegal are to be protected by
freedom of religion._ In fairness to the appellant, counsel
conceded that to the extent that religious beliefs run afoul
of criminal law proscriptions such as those relating to bigamy
or the use of drugs, a belief in polygamy or the use of
hallucinogenic drugs is not a defence. Those who practice these
beliefs, as opposed to merely holding them, can be subject to
attack. We accept that any citizen, whether motivated by religious
beliefs or otherwise, is entitled to his or her own opinion as
to the validity of the laws of this country. Debates as to
abortion, capital punishment and euthanasia are examples of
issues where the courts will not interfere with thought or the
exercise of free speech. However, as will be developed later, _one
could conclude that the appellant Scientology, in the instances
alleged by the informant, has gone well beyond postulating
controversial religious beliefs and, through its senior officers,
is committing a number of serious criminal act._ [Emphasis added.]
In my view, Re Church of Scientology et al. and the Queen (No. 6)
establishes that a corporation with religious objects is not immune
from prosecution for the commission of criminal acts. There is also
much to be said for the respondent's submission that this court has
held that such prosecution does not infringe freedom of religion.
However, Mr. Ruby submits that the basis upon which the corporation
is held liable is still an open question in this count. As pointed
out above, Mr. Ruby advances the position that although prosecution
of a corporation with religious objects does not per se
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infringe freedom of religion, the application of the
identification to such a corporation does. He argues that while
it may be tolerable for the state to prosecute a corporation with
religious objects for the criminal acts of persons in charge of the
corporation, namely the board of directors, this does not justify
punishing the corporation for the wrongdoing of other employees or
agents. As I understand the argument, in effect, vicarious liability
is imposed on the "innocent" corporation and the "innocent"
parishioners and members for the acts of persons who may be acting
largely for their own purposes and at odds with the religious
doctrine and who do not have the authority of the "trustees" of
the corporation's assets.
Although Estey J. in Canadian Dredge & Dock suggested at p. 683
that the identification doctrine creates liability in the corporation
on a "primary" rather than "vicarious" basis, he later conceded at
p. 692 that, of necessity, any attribution of liability to a
corporation will be vicarious in some sense:
Thus where the defendant is corporate the common law has
become pragmatic, as we have seen, and a modified and limited
'vicarious liability' through the identification doctrine has
emerged. In this context I use the word "vicarious" in the sense
that it is defined in the principal dictionaries, including the
Shorter Oxford English Dictionary (1959), where the term is
defined: "that takes or supplies the place of another thing or
person; substituted instead of the proper thing or person."
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Stevenson J. expressed a similar view in R. v. CIP Inc., [1992] 1
S.C.R. 843 at 855:
_We must also remember that corporate criminal liability is
essentially vicarious liability based upon the acts and
omissions of individuals:_ "a corporation may only act through
agents" (Canadian Dredge & Dock [citation omitted] at p. 675).
Extending Charter guarantees to corporations will, in some
circumstances, afford a measure of protection to those
individuals. [Emphasis added.]
I am prepared to assume, without deciding, that the common law
identification doctrine constitutes a non-trivial burden on the
practice of the Scientology religion and therefore infringes s. 2(a)
of the Charter. For the reasons set out below, however, I am
satisfied that this common law rule is a reasonable limit under
s. 1 of the Charter.
(e) Section 1 of the Charter
In R. v. Swain, [1991] 1 S.C.R. 933, Lamer C.J.C. explained the
application of s. 1 to a common law rule. He held at pp. 978-89 that
if it is possible to reformulate a common law rule so that it would
not infringe the Charter, such a reformulation should be undertaken.
If it is not possible, the court must consider whether the common
law rule can be upheld as a reasonable limit under s. 1.
In this case, it is necessary to resort to the s. 1 analysis. There
is no reformulation of corporate criminal liability that will not
infringe s. 2(a) of the Charter. The
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mere prosecution of the Church will stigmatize the parishioner and
members, and divert funds from religious purposes to defence of the
charge. Even if the prosecution were limited to the acts of the board
of directors, it would infringe freedom of religion since liability
would still be imposed on the corporation on a vicarious basis. The
"innocent" parishioners would be required to fund the defence, and
Church property would be at risk if the Church were convicted and a
fine imposed.
The s. 1 test is well established. Two conditions must be met:
1. the objective of the impugned provision must be pressing
and substantial; and
2. the means chosen to achieve the objective must pass a
proportionality test; that is to say, they must:
(a) be "rationally connected" to the objective and not be
arbitrary, unfair or based on irrational considerations;
(b) impair the right or freedom in question as "little as
possible"; and
(c) be such that their effects on the limitation of the right
or freedom are proportionate to the objective.
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(i) Objective
The objective of applying the identification doctrine of criminal
liability to corporations with religious objects relates to a
fundamental tenet of our society, namely, that no person is above
or beyond the law. The Charter itself in the preamble recognizes the
supremacy of the rule of law. While there is no precise definition
of the rule of law, it surely embraces the second of Dicey's three
principles of the rule of law: the equal subjection of all classes
to the ordinary law: Dicey, Introduction to the Study of the Law of
the Constitution. 10th ed. (1959), at p. 193. In R. v. Turpin, [1989]
1 S.C.R. 1296 at 1329, Wilson J., referring to the guarantee of
equality before the law in s. 15 of the Charter, noted that this
value has "historically been associated with the requirements of
the rule of law that all persons be subject to the law impartially
applied and administered."
Having regard to the important position that corporations occupy
in modern society, subjecting corporations -- including those with
religious objects -- to the ordinary criminal law is a pressing
and substantial objective, and is implied by the rule of law.
(ii) Rational Connection
The identification doctrine is a pragmatic but rational way of
making a corporation liable for criminal acts committed on its behalf
or at least partly for its benefit.
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In contrast to the American doctrine of respondeat superior, which
holds a corporation liable for the acts of any employee performed
within the scope of employment, the identification doctrine represents
a relatively limited response to the necessity of bringing all
corporations within the purview of the criminal law. It imposes
liability only for the acts of the corporate governing body and
those to whom that body has delegated executive authority. Moreover,
even if the employee is deemed to be a directing mind of the
corporation, the corporation will not be liable for that employee's
acts if they are in total fraud of the corporation. As Estey J.
wrote in Canadian Dredge & Dock at p. 719:
The identification theory, however, loses its basis in rationality
when it is applied to condemn a corporation under the criminal
law for the conduct of its manager when that manager is acting
not in any real sense as its directing mind but rather as its
arch enemy.
Given these limitations on the identification doctrine, I am
satisfied that it is rationally connected to the objective.
(iii) Minimal Impairment
At this stage of the proportionality analysis, the court must ask
whether the impugned law infringes the Charter right "as little as
possible". In the case of a common law rule, less judicial deference
is warranted than in the case of a legislative provision. The court
must adopt "the least intrusive common law which will attain the
objectives without
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disproportionately affecting rights": R. v. Swain at p. 984. This
requires the court to explore alternative means of achieving the
pressing and substantial objective.
At the outset, it is important to note the limitations on the
identification doctrine.
As Estey J. explained in Canadian Dredge & Dock at p. 693:
[The identification doctrine] merges the board of directors,
the managing director, the superintendent, the manager or anyone
else delegated by the board of directors to whom is delegated
the governing executive authority of the corporation, and the
conduct of any of the merged entities is thereby attributed to
the corporation.
The doctrine does not, however, extend criminal liability to any
other agents or employees. Further, the identification doctrine
operates only where the directing mind is acting within the scope
of his or her authority. Finally, even if the act is committed by
a directing mind of the corporation carrying out his or her assigned
function, no liability will be attributed to the corporation where
the criminal act is totally in fraud of the corporate employer and
where the act is intended to and does result in benefit exclusively
to the employee.
The appellant suggests the imposition of corporate criminal
liability, in the case of a non-profit religious corporation, only
where the board of directors either authorized the illegal activity
or failed to exercise due diligence to prevent it. Arguably, this
alternative approach would address one of the objectives of the
imposition of criminal liability by
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forcing the corporation to improve its organizational structure to
prevent criminal wrongdoing within the organization. Liability based
on the acts or omissions of the board would encourage the board to
adopt policies to ensure clear lines of accountability, and that it
received adequate information of corporate activity.
However, failing to impose corporate criminal liability for the
acts of the directing minds who are not on the board of directors
fails to take into account one of the fundamental rationales for
imposing criminal liability on the corporation in the first place.
The wrongdoing of the agents of a corporation is not done in a vacuum
and, ordinarily, not solely to profit the individual agent. As
Professor Dawn Russell points out in "Paedophilia: The Criminal
Responsibility of Canada's Churches" (1992), 15 Dalhousie L.J. 380
at 394 in comparing the for-profit corporation and the church,
"[M]uch of the corporate wrongdoing done by both of these types
of organization is attributable to the phenomena of institutional
loyalty or of loyalty of their agents to the goals of the
institution." The agents commit the criminal acts not for personal
gain, but to protect the institution and its reputation. To fail to
impose criminal liability on the corporation for acts of persons
with managerial responsibility acting in the name of the corporation
would result in a substantial gap in the deterrent objective of the
criminal law. In fact, it could encourage managers to become more
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secretive to protect the corporation while they in engage in illegal
activities for the perceived greater good of the corporation.
The imposition of criminal liability on the corporation with
religious objects for the acts of its managers is also necessary to
protect vulnerable persons within the hierarchy. The managers have
the day-to-day responsibility for the use of vast sums of money for
important societal purposes. To relieve the corporation of liability
when the managers have abused their positions to benefit the
corporation would aggravate the powerlessness of the victims. In
this case, the victims were large, powerful institutions such as the
O.P.P. and the Ministry of the Attorney General. In another case,
however, the victims could be the parishioners or members themselves.
To say that the individual managers could be prosecuted is simply
not an adequate response. It fails to take into account that the acts
are not for personal gain, but for the benefit of the institution.
The Guardian's Office operated not to benefit its members or even
the individual parishioners. The plant operations were for the
benefit of the Church of Scientology of Toronto as an institution,
to enable it to carry on as an institution. Notwithstanding the
significant stigma of a criminal conviction, it is entirely
appropriate that
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the institution be held accountable for the wrongdoing of the
individuals whom it put in a position to perpetrate these crimes on
its behalf.
In addition to failing to achieve the objective of bringing
religious corporations under the criminal law, it is unclear to me
how the appellant's proposed alternative would impair the freedom
of religion any less than the identification doctrine. That doctrine
already imposes liability for the acts or omissions of the board of
directors, but only where there is mens rea. Mere negligence or lack
of due diligence by the board does not render the corporation liable
for criminal offences. Imposing criminal liability for the negligence
of the board might, in fact, be more intrusive of the freedom of
religion. As Mr. Bernstein points out, many non-profit corporations
rely on volunteer boards of directors. The day-to-day management of
the corporation is delegated to its managers. Imposing criminal
liability based on negligence by the board of directors would force
these volunteers to become more involved in the day-to-day
operations. This would no doubt be a positive development from the
standpoint of its potential to prevent corporate crime. It would,
however, make it that much more difficult to attract people to serve
on these boards.
Further, if the courts were to adopt a lower standard of criminal
liability for corporations with religious objects, this would
necessarily invite inquiry into whether these
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objects were genuine or a mere sham to take advantage of the
preferential treatment. This would not be difficult for the
established religions. The smaller, lesser known sects, those groups
that are most vulnerable to the tyranny of the majority, would be
at greatest risk. Their religious beliefs and practices would be
placed on trial. This would be a highly undesirable consequence and
essentially at odds with the Charter guarantee of freedom of religion.
As Henry Hansmann observes in "The Evolving Law of Nonprofit
Organizations: Do Current Trends Make Good Policy?" (1988-89), 39
Case Western L. Rev. 807 at 820, "[T]he best way to assure that
organizational law neither penalizes nor promotes religion is to
keep it from discriminating between religious and non-religious
organizations."
Imposing liability on the religious corporation on a different
basis than a secular corporation would also disadvantage religious
corporations in other ways. Holding the religious corporation to a
lower standard may simply aggravate the mistrust that some feel
towards religious organizations. Hansmann makes this point in
relation to fundraising at pp. 819-20:
The usual argument offered to justify a lower degree of
accountability for religious organizations, in corporate law
and elsewhere, is that higher standards would be excessively
intrusive and would interfere with the separation of church
and state. _But this argument is unpersuasive, at least in
the context of corporate law. Indeed, one might argue that
establishing weaker standards of accountability for religious
nonprofits actually *disadvantages* religious organizations
relative to secular ones. These low
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standards result in greater opportunity for fraud among religious
organizations, leading to a spirit of distrust toward such
organizations on the part of those who would otherwise support
them. This distrust handicaps those organizations in raising funds
and otherwise securing the commitment and support of the public._
[Emphasis added.]
For the above reasons, I am view that the application of the
identification doctrine to non-profit religious corporations
infringes the appellant's Charter rights "as little as possible".
It is not possible to fashion a different rule of criminal liability
for such corporations that will attain the objective and be less
intrusive of Charter rights.
(iv) Proportionality of Effects
The final step of the proportionality test requires that there
be a "proportionality between the deleterious effects of the measures
which are responsible for limiting the rights or freedoms in question
and the objective, and there must be a proportionality between the
deleterious and the salutary effects of the measures": Digeneous v.
Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at 889.
Given the limits on the reach of the identification doctrine and
the importance of the rule of law and protection of the vulnerable,
I am satisfied that there is an appropriate proportionality between
the deleterious effects of the application of the identification
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doctrine and the objective. I also believe that deleterious effects
do not outweigh the salutary effects. The appellant's own evidence
established that _any_ prosecution, even of the individual
perpetrators, would have a significant deleterious effect on the
organization and its parishioners and members. This stigmatization
is inevitable whether or not the corporation itself is prosecuted
and whether or not liability is limited to the acts of the board of
directors. I cannot see how any additional stigmatization and related
deleterious effects from the identification doctrine outweigh the
salutary effect of vindicating the rule of law.
In contrast, for the reasons set out above in relation to minimal
impairment, the deleterious effects of the appellant's proposed
modification to the common law rule would, in my view, far outweigh
the alleged salutary effects of such a solution. This ground of
appeal fails.
(f) Section 2(d) of the Charter
The corporate appellant also relies on freedom of association in
s. 2(d) of the Charter. In my view, assuming the identification
doctrine violates s. 2(d), for the reasons already given in relation
to freedom of religion, I am satisfied that any violation of s. 2(d)
can be justified under s. 1 of the Charter. The freedom of association
that the appellant seeks to
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invoke is the freedom to associate for religious purposes. Nothing
is added to the argument by invoking s. 2(d).
XI. APPLICATION OF THE IDENTIFICATION DOCTRINE TO THIS CASE
A. The Application of The Rhone
The corporate appellant argues that even if the identification
doctrine applies to it, the trial judge failed to direct the jury
properly on the doctrine as it is now understood in light of the
Supreme Court's decision, after the trial in this case, in The Rhone
v. The Peter A.B Widener. In fact, the appellant submits that based
on the law as enunciated by Iacobucci J. in The Rhone there was no
evidence upon which the appellant could be convicted. The appellant
relies mainly on the following excerpts from The Rhone at pp. 520-2l
and 526:
As Estey J.'s reasons [in Canadian Dredge & Dock]
demonstrate, the focus of inquiry must be whether the impugned
individual has been delegated the "governing executive authority"
of the company within the scope of his or her authority. I
interpret this to mean that one must determine whether the
discretion conferred on an employee amounts to _an express or
implied delegation of executive authority to design and supervise
the implementation of corporate policy rather than simply to
carry out such policy. In other words, the courts must consider
who has been left with the decision-making power_ in a relevant
sphere of corporate activity. [Emphasis added.]
....
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With respect, I think that the courts below overemphasized
the significance of sub-delegation in this case. _The key factor
which distinguishes directing minds from normal employees is
the capacity to exercise decision-making authority on matters
of corporate policy, rather than merely to give effect to such
policy on an operational basis, whether at head office or across
the sea._ While Captain Ketch no doubt had certain decision-making
authority on navigational matters as an incident of his role as
master of the tug Olio and was given important operational duties,
governing authority over the management and operation of Great
Lakes' tugs lay elsewhere. [Emphasis added.]
The appellant submits that the trial judge never instructed the
jury that to find the appellant guilty on the basis of the
identification doctrine, it must be shown that persons alleged
to be the directing minds of the corporation had been delegated
authority to design and supervise the implementation of corporate
policy. The appellant further submits that the bulk of the evidence
in this case is that persons such as Bryan Levman had no authority
to design corporate policy. Rather, their role was to implement
policies established elsewhere and, in particular, by the Guardian
Jane Kember and the officials in the Guardian's Office World Wide.
In my view, the decision of the Supreme Court of Canada in The
Rhone did not apply to this case, and the trial judge properly
directed the jury with respect to corporate criminal liability. The
discussions by Iacobucci J. in The Rhone and Estey J. in Canadian
Dredge & Dock are premised on a corporate structure in which ultimate
executive authority
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lies with the board of directors. The identification doctrine renders
the corporation liable as a result of the acts, in addition to those
of the board of directors, of those persons to whom the board has
expressly or impliedly delegated executive authority. That, however,
was not this case. The Church operated in the context of a rigid
command structure in which the board of directors was irrelevant.
The board of directors did not appoint, much less delegate to, the
senior officials of the Church. In fact, the members of the board
were themselves required to sign undated letters of resignation. The
evidence is clear that the appellant's board of directors had no
executive authority. Thus, it is beside the point to attempt to apply
principles relating to the degree of delegation of that authority.
At trial, the issues of corporate liability did not concern whether
the illegal acts were carried out with the knowledge of or by
persons with executive authority. The only real issues were whether
information-gathering was within the scope of authority of the
persons in control of the Guardian's Office and, more importantly,
whether the Guardian's Office was an autonomous body, separate and
apart from the Church of Scientology of Toronto. The trial judge's
directions on these two issues were clear and unimpeachable. The
following excerpt from the charge to the jury demonstrate the context
in which the issues were developed at the trial:
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The real issue in this case, however, with respect to the
corporate accused, is whether the information-gathering activities
of the Guardian Office in Toronto were a field of operation of
Church of Scientology of Toronto, assigned to the Guardian Office
in Toronto by Church of Scientology of Toronto.
The theory of the defence of Church of Scientology of Toronto
is that the information-gathering activities of the Guardian
Office in Toronto were not a field of operation of Church of
Scientology of Toronto, and were not assigned to the Guardian
Office in Toronto by Church of Scientology of Toronto. And
every time I say the name, I am trying to emphasize "Toronto",
because there are, of course, other corporations in Canada and
in the United States which are "Church of Scientology of" -
such as Vancouver - and they are not concerned with Church of
Scientology of Toronto, whose head offices and its offices were
located in the City of Toronto.
The defence submits that the field of operation that the
people in the Guardian Office in Toronto were concerned with
was a field of operation of the Guardian Office, which was an
autonomous body, separate and apart from the persons or
organizations that control the delivery of the services of
Scientology to adherents throughout the world.
This direction was repeated in one form or another with respect
to each count. For example, in relation to the breach of trust count
respecting the Ministry of the Attorney General, the trial judge
directed the jury as follows:
In this case, in respect of any count in which you are satisfied
that persons in the Guardian Office in Toronto were parties to the
offence charged by aiding it, directing it, or counselling it, you
must decide whether, in relation to the criminal act, the persons
in the Guardian Office were the directing mind of the Church of
Scientology of Toronto within a field of operation assigned to
them.
Now, I referred you to Exhibit 5, the policy letter setting up
the office of the Guardian (it is dated March the 1st, 1966), and I
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suggested to you, though I emphasized that this is a matter for
your decision as the triers of fact, that you could reasonably
conclude, on the evidence, that the gathering of intelligence
for the protection of Scientology was a field of operation that
had been assigned by L. Ron Hubbard to the Guardian, and that
the persons in the Guardian Office in Toronto who were directing
or engaged in the plant activities were engaged in that field
of operation, and I suggested to you that the real issue in
this case, with respect to the corporate accused, is whether
the information-gathering activities of the Guardian Office in
Toronto were a field of operation of Church of Scientology of
Toronto, assigned to the Guardian Of Office in Toronto by the
Church of Scientology of Toronto.
The theory of the defence of the Church of Scientology of
Toronto is that the information-gathering activities of the
Guardian Office in Toronto were not a field of operation of
Church of Scientology of Toronto, and were not assigned to the
Guardian Office in Toronto by Church of Scientology of Toronto.
Instead, the defence submits, the field of operation is that of
the Guardian Office, which was an autonomous body, separate and
apart from the organization that controlled the delivery of the
services of Scientology to adherents throughout the world. And
I read you from the policy letter Exhibit 6.
Then I went on to refer to the evidence which I thought you
might consider significant in deciding whether the persons in the
Guardian Office in Toronto were separate and apart from Church
of Scientology of Toronto so that their information-gathering
activities could not be regarded as a field of operation of
Church of Scientology of Toronto.
In light of these clear and repeated instructions, it is obvious
that the jury was satisfied that information-gathering was a field
of operation of the Church of Scientology of
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Toronto and that persons in the Guardian's Office performing those
operations were not part of an autonomous body, separate and apart
from the delivery of Scientology services.
In the command structure of the Church of Scientology generally and
the Church of Scientology of Toronto in particular, de facto control
was divided between the Executive Director and the Assistant Guardian
Toronto. The Board of Directors was, on the evidence, irrelevant.
Accordingly, once the jury found that the Guardian's Office Toronto
was not an autonomous body, they were bound to find the appellant
liable for the unlawful acts committed by the persons in that office,
inasmuch as de facto control resided there.
In Canadian Dredge & Dock, Estey J. said at p. 701 that the
identification theory was "inspired in the common law in order to
find some pragmatic, acceptable middle ground which would see a
corporation under the umbrella of the criminal law of the community
but which would not saddle the corporation with the criminal wrongs
of all of its employees and agents." This pragmatic approach dictates
that the corporation be liable for the acts of persons in de facto
control of the corporation, be it the board of directors or, as in
this case, the persons in control of the board of directors. The
dicta from The Rhone was, in my view, not intended to apply to a
case where there is no issue of delegation. Counsel for the appellant
concedes as much. Mr. Ruby agrees that the identification doctrine
would not
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apply here if the board of directors had authorized the illegal acts.
Similarly, where the most senior officials in the corporation having
de facto control of the corporation have committed the criminal acts
or authorized them, no issue of delegation of executive authority
arises. To hold otherwise would mean that this corporation had no
directing mind. This is simply not a sensible or pragmatic position.
Moreover, in my view, even if the principles in The Rhone applied
to this case, they must be adapted to the facts as they existed here.
It may be that the Assistant Guardian Toronto and the other senior
officials in the Guardian's Office Toronto had limited discretion
to set police on matters of information-gathering. However, whatever
executive authority did exist within the Church with respect to those
matters resided with the senior officials in the Guardian's Office.
The Assistant Guardian, for example, was accountable to no one within
the Church. He was free from control and instruction by the board of
directors and the Executive Director. For these reasons, I would not
give effect to this ground of appeal.
B. Trial Judge's Direction on Corporate Criminal Liability
The trial judge properly instructed the jury with respect to the
two central corporate criminal liability issues in the case: field
of operation and the alleged autonomous nature of the Guardian's
Office. The appellant argues that the trial judge did not adequately
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direct the jury with respect to the limits of corporate criminal
liability. In Canadian Dredge & Dock, Estey J. defined those limits
in the following terms at pp. 713-14:
[I]n my view the identification doctrine only operates where the
Crown demonstrates that the action taken by the directing mind
(a) was within the field of operation assigned to him; (b) was
not totally in fraud of the corporation; and (c) was by design
or result partly for the benefit of the company.
The trial judge expressed the opinion that the jury would have little
difficulty in finding that the Crown had proven that the acts were
not totally in fraud of the Church and that they were intended to
benefit the corporation. The trial judge did, however, leave those
issues for the jury to determine.
Although the trial judge's directions were brief and accompanied
by a relatively strong expression of opinion, they were adequate.
Once the jury found that information-gathering was a field of
operation assigned to the Guardian's Office and that the Guardian's
Office was not separate and apart from the corporation, it was
unlikely that they would nevertheless find that the senior Guardian's
Office personnel were acting _totally_ in fraud of the Church and
did not _intend_ to benefit the Church. The illegal plant activity
was designed to protect the Church from its perceived enemies. As
the trial judge pointed out, the persons in the Guardian's Office
who authorized or carried out the illegal acts received no direct
personal benefit.
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The appellant also argues that the trial judge erred in his charge
by placing before the jury the "new" theory of liability of wilful
blindness. The question of wilful blindness arose in response to
submissions made by Mr. Ruby in his closing address to the jury. He
told the jury that there was "not the slightest bit of evidence" to
suggest that the board of directors ever authorized a criminal act.
He also submitted that there was no evidence that the board had
expressly or by implication assigned any field of operation to the
Guardian s Office and that the Church could only act through its
directors.
In his charge to the jury, the trial judge gave the following
instruction, which the appellant alleges constituted a new theory of
liability:
A further necessary inference, in my opinion - and this is a
matter for your judgment - is that these members of the Board
of Directors of Church of Scientology of Toronto either knew of
the illegal plant activity, or were willfully blind about what was
being done behind the locked doors of the Guardian Office. The
persons controlling a corporation cannot avoid corporate criminal
responsibility by installing a board of directors who close their
eyes to the conduct of the persons in control.
The reference to wilful blindness was repeated once more in relation
to the control that the members or parishioners may have exercised:
Thus, the Church that was captured was either a corporation
of which the parishioners were not even members, or it was a
corporation whose members had chosen a board of directors that
was, at best, wilfully blind about the plant activity that was
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accompanied by so much obvious secrecy. The directors of a
corporation cannot avoid responsibility for themselves or the
corporation by closing their eyes to suspicious circumstances
that cry out for investigation.
I agree with the respondent that the trial judge might have avoided
the use of the phrase "wilfully blind" only because it has come to
have a special meaning in criminal law. See R. v Sansregret, [1985] 1
S.C.R. 570. However, the appellant was not prejudiced by the reference
to wilful blindness. Contrary to the appellant's submissions, the
trial judge was not invoking a new theory of liability based on
wilful blindness of the board of directors. Rather, he was pointing
out that the persons who were in control of the corporation had set
up a board of directors that had no real executive authority. He
quite properly pointed out that, on the facts of this case, it was
no _defence_ that the figurehead board of directors may not have
known about the illegal acts of the persons with de facto executive
authority.
When the charge to the jury is read as a whole, I am satisfied that
there is no danger that the appellant was convicted on the basis of
anything done or not done by the board of directors. For example, in
relation to the count involving the Ministry of the Attorney General,
the trial judge directed the jury as follows:
There is no evidence that the Church of Scientology
authorized the Guardian Office in Toronto, either expressly or
by implication, to participate in the unlawful plant operation
- _that is, there is no evidence that the Board of Directors
of the Church of Scientology
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gave such authority, expressly or by implication. So that your
concern in this case with the basis for corporate criminal
liability depends upon the question of whether the persons - and
in this case, the persons in the Guardian Office in Toronto who
participated in the plant operation - were the directing mind of
the Church of Scientology of Toronto_, within a field of operation
assigned to them so that their actions and intent were the very
actions and intent of the corporation itself. A corporation will
only be found liable on this basis if the action taken by the
directing mind was not totally in fraud of the corporation,
and was, by design or result, partly for the benefit of the
corporation. [Emphasis added.]
This direction fairly put the issues to the jury; similar directions
were repeated frequently throughout the charge. The jury could not
have been confused about the findings they had to make or the basis
for the appellant's liability. This ground of appeal fails.
XII. SENTENCE
A. Introduction
The trial judge imposed a fine totalling $250,000 upon the Church
of Scientology of Toronto. He imposed a fine of $100,000 in respect
of the count involving the O.P.P. and a fine of $150,000 in respect
of the count involving the Ministry of the Attorney General. We
called on the Crown to respond to the sentence appeal.
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In my view, the fine represented a fit sentence. The trial judge
carefully reviewed the facts and aspects of the case that the parties
put forward as aggravating and mitigating factors. I intend to deal
briefly who the submissions made by Ms. Edwardh in support of the
corporate appellant's claim that the sentence was unfit and that the
trial judge committed a number of errors in principle. Ms. Edwardh
made four principal submissions:
(i) The trial judge misconceived the gravity of the offenses and
therefore overemphasized the seriousness of the offences.
(ii) The trial judge erred in principle in rejecting the
appellant's claim that it had shown great remorse.
(iii) The trial judge failed to treat the appellant as a discrete
entity independent of the Church of Scientology International.
(iv) The trial judge placed undue emphasis on the factor of
general deterrence given the unusual nature of the offence.
B. The Seriousness of the Offence
The fundamental submission with respect to the seriousness of the
offense is that there was no significant interference with law
enforcement or the administration of justice. As it fumed out, the
persons planted in the O.P.P. and the Ministry of the Attorney
General were unable to obtain anything of real value to the Church
or anything that impaired the
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functioning of these agencies. The trial judge recognized this aspect
of the case. He pointed out that the count in relation to the O.P.P.
was based on the conduct of Cynthia Bake and that she was only
able to obtain a document that turned out to contain "innocuous"
information. The conviction concerning the Ministry of the Attorney
General concerned the conduct of Janice Wheeler on three occasions.
On the first occasion, she let Marion Evoy into the Ministry archives
to obtain copies of correspondence between the Attorney General of
Ontario and the Attorney General of the United States. On the second
occasion, Ms. Wheeler turned over a Ministry file respecting the
application of the appellant for authority to solemnize marriages.
On the third occasion, Ms. Wheeler took Ms. Evoy into the Ministry
offices. They were looking for files on the Church of Scientology
but were unable to find any.
The trial judge characterized these acts as follows:
The criminal acts of Church of Scientology of Toronto were
insidious attacks on two essential law enforcement agencies in
this province. The integrity and effective functioning of those
agencies (the Ministry of the Attorney General and the Ontario
Provincial Police) are of great importance to good government
in this province. The offences _threatened_ such integrity
and effectiveness, and I regard each of them as very serious.
[Emphasis added.]
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I agree with this characterization of the offences. The trial judge
did not misapprehend their nature. He quite properly focused on the
intended consequences of the offenses. This conduct represented a
deliberate attempt to undermine the effectiveness of the law
enforcement agencies. The acts struck at the integrity of the public
service. This was not simply an intelligence-gathering exercise. The
appellant had planted its agents in these agencies so that they would
be able to anticipate and counter the efforts of these agencies to
enforce the law.
It was also important that these offenses were not isolated
instances of errors of judgment. They represented the execution
of a carefully conceived plan. The agents were given special
instructions to assist them in carrying out the offenses. An
independent part of the appellant's infrastructure was devoted
to this kind of activity. The planting of agents in these law
enforcement agencies was merely part of a systematic pattern of
conduct on the pan of the appellant. These agents were not acting
for personal gain but under the belief instilled by the appellant
that these acts were necessary to protect their Church.
C. Remorse
The trial judge unequivocally rejected the appellant's submission
that remorse was a mitigating factor. He expressed his reasons for
doing so as follows:
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Next I deal with the question of remorse. I am unimpressed by the
defence submission that the church has shown remorse by removing
from office any individuals involved in the offences, by offering
to assist the authorities in the prosecution of the wrongdoers,
and by requiring the wrongdoers to perform acts of public service
in an amends programme. Remorse requires an acceptance of guilt.
The conduct of Church of Scientology International and Church of
Scientology of Toronto, after the Church of Scientology International
became aware, in July 1981, of the criminal conduct of the Guardian
Office World Wide prior to 1978, and of those in local churches like
Church of Scientology of Toronto who had acted on the direction
of Guardian Officer World Wide, was not to accept corporate
responsibility; instead, the corporation sought to have individual
wrongdoers take the blame, and to distance the corporations from
them. The most telling evidence against the church, on the question
of remorse, is the fact that no steps were taken to reveal the
criminal conduct to the authorities until after the seizure of
documents in March 1983. By that time, the detection of the criminal
acts was virtually certain. And then the offer to the authorities in
1984 was to assist in the prosecution of the individuals, not to
accept responsibility on the part of the church for criminal acts
done by senior employees almost a decade previously.
The trial judge also rejected the submission that although the
appellant had defended the case on the basis of legal defences, it
had always accepted moral responsibility for the acts. He pointed
out that any acceptance of moral responsibility was made on behalf of
the individuals and that the appellant's position was always that it
was not at fault. In this respect he noted the contents of a press
release issued by the appellant following the jury verdict. The
press release included the following:
Parishioners and church staff who are innocent of any crime
have been punished today for acts they knew nothing about almost
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twenty years after the fact. Our justice has protected unrepentant
criminals who ordered or committed these acts, given them immunity,
and used their testimony to assault the innocent. The result is a
travesty of justice and a useless waste of more than $15 million
in taxpayers' money.
I agree with the trial judge that remorse was not a mitigating
factor. The appellant at no time admitted responsibility for these
offences or expressed remorse for its involvement As Ms. Pomerance
pointed out in her submissions, the evidence was clear that the
appellant stopped this kind of activity because the risk of discovery
was putting the appellant and the Church of Scientology in jeopardy.
In the years leading up to the commission of these offences, the
Church had tried various illegal means in a misguided effort to
protect itself from those agencies, organizations and individuals
that it perceived to be its enemies. When the risk of detection became
too great, a particular technique would be abandoned in favour of
some better or different method. The various actions such as the
"amends programme", which forced the individuals to accept personal
responsibility, were mechanisms by which the appellant distanced
itself from the acts committed on its behalf.
On the other hand, while I do not view remorse as a proper
mitigating factor here, there were some factors in the appellant's
favour. Substantial efforts were made to remove the people involved
in the illegal acts from positions of power and responsibility within
the organization. Important changes were made to the structure of the
corporation to
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ensure that this kind of conduct would not be repeated. The
senior officials who took over responsibility for the Church,
repudiated the illegal acts and made it clear that such conduct was
inconsistent with the teachings of the Church of Scientology. It is
also the case that the offences relate to acts committed some 20
years ago and many of the current parishioners would have had no
knowledge of those activities. In his reasons, the trial judge made
reference to many of these factors and I cannot say that he did not
give them the proper weight.
D. Treating the Appellant as a Discrete Entity
The appellant argues that, in effect, it is insolvent and that
accordingly only a nominal fine should be imposed. It led evidence
that its liabilities exceeded its assets by approximately $12 million
and that it had already expended over $7 million in legal fees to
defend these charges. There was evidence, however, that the Church
of Scientology International had provided financial help to the
appellant to assist in the payment of legal fees and other creditors.
The trial judge also noted the important role played by the Church
of Scientology International in directing some of the operations of
the appellant. In that context, he said as follows:
Because of the role of the mother church (described as
the Church of Scientology International) in controlling the
local Church of Scientology of Toronto and in providing financial
assistance, the corporate accused, in my judgment, is in a
position analogous to
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that of a wholly-owned subsidiary of a large corporation. The
Court must look to the size of the parent in determining the
amount of the fine to be imposed.
In the unusual circumstances of this case I cannot say that the
trial judge erred in taking this approach. There was evidence that a
portion of the funds used by the appellant from its parishioners and
from its various activities were sent to the "mother church". While
the offences were intended to benefit the appellant, they were also
intended to benefit the movement as a whole. In fixing the amount of
the fine, it was open to the trial judge to look to the assets of the
Church of Scientology International. The trial judge also noted that
there was no need for a large fine as a matter of specific deterrence
and that the fine must not be "crushing or vindictive". It is apparent
that he did not give undue weight to the nature of the relationship
between the appellant and the International Church.
E. General Deterrence
Ms. Edwardh submits that the trial judge placed undue emphasis on
general deterrence. She argues that the offences were highly unusual
and thus the prevalence of the crime did not dictate a heavy deterrent
penalty. She also argues that it was wrong in principle to use a
religious organization as a means of deterring the public generally.
The point here seems to be that it was not appropriate to impose a
fine on an association that
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exists only to exercise protected Charter rights and where the fine
will be paid by innocent parishioners.
In his reasons, the trial judge made it clear that be considered
general deterrence to be the principal objective in determining the
amount of the fine. In my view, be did not err in principle in doing
so. The appellant was established as a corporation for reasons that
seemed appropriate at the time. One purpose was to take advantage of
the limited liability of the corporation. However, this also meant
that the appellant was subject to criminal prosecution for the acts
of its directing minds. I can see no principled basis for holding
that general deterrence should not be a factor in fixing the sentence
to be imposed. In this respect, it is proper to take into account
that the appellant itself devoted considerable resources to these
non-religious objects.
General deterrence did have an important role to play in fixing
the size of the fine. The importance of general deterrence to a
large extent follows from the seriousness of the offence to which
I have already adverted. A significant fine was appropriate to
encourage compliance by other entities who might otherwise adopt
a similar strategy and attempt to subvert the public service and
interfere with the administration of justice.
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XIII. DISPOSITION
Accordingly, I would dismiss the appeals by both appellants from
conviction. I would grant leave to appeal sentence by the Church of
Scientology of Toronto, but dismiss the appeal.
[signatures]
C13047
C13207
COURT OF APPEAL FOR ONTARIO
ROBINS, LASKIN and ROSENBERG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
-and-
CHURCH OF SCIENTOLOGY OF TORONTO
and JACQUELINE MATZ
Appellants
--------------------------------
JUDGMENT
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RELEASED: April 18, 1997
[signature]